A Stitch in Haste

Yesterday I blogged about the woman who "sold her forehead" by agreeing to have it tattoed with an online casino's web address. In that post I pointed out how tempting it can be to remove some decisions, in the name of paternalism, from the realm of "mere" economics and explained why such paternalism is flawed.

As a follow-up, here are some other recent stories about trying to put monetary value on things we often think cannot, or should not, be reduced to dollar amounts.

---

ITEM: Point of Law Forum has two posts about subjective versus objective damages in the context of the following hypothetical:

Suppose a teenager attempts suicide by overdosing on 300 aspirins. Suppose further the physicians treating the teenager actually make a medical mistake which results in the death of the teenager. What should the damages be? From an economic perspective, the teenager essentially thought his future was worthless.

The author suggests that non-pecuniary damages (pain & suffering, punitive damages) may be "over-awarded" since people don't take out "pain and suffering insurance" but only "medical insurance."

MY TAKE: I'm unpersuaded. The point of tort law is to make people whole, not to reward or penalize plaintiffs for "guessing right or wrong" about how they value non-pecuniary aspects of their lives that may be impeded in accidents that they had no reason to foresee in the first place. I see no reason to expect people to pre-insure against every imaginable contingency in life — if we did, then there would be no need for tort law in the first place.

A co-blogger then responds and suggests that personal responsibility, if not personal expectations, should play a greater role in computing damages. He also reviews the difficulty in adopting a subjective or "sentimental value" approach to damages. Both posts are worth reading.

---

ITEM: It's becoming increasingly common, when an imprisoned convict has his conviction overturned, to be compensated for his undeserved confinement. But should compensation go to every overturned conviction or only those who clearly were innocent?

John Stoll walked out of prison last year a free man at 62 after 20 years behind bars. His 1985 conviction on 17 child molestation counts was thrown out by a judge who said investigators coerced the witnesses.

Now Stoll wants some payback, under a state law that allows for vindicated prisoners to collect $100 for every day spent in prison. But first, he must prove to a state board he did not commit the crimes and did not contribute to his arrest.
...
Prosecutors still believe Stoll is guilty, but decided not to retry him, saying they no longer had enough evidence. "The judge didn't make a finding of factual innocence," prosecutor Lisa Green said.

MY TAKE: I might actually take it a step further and require not only error but also actual misconduct by police or prosecutors. And such abuses are already covered by 42 USC 1983 ("violation of civil rights") anyway. If the criminal justice system mistakenly but reasonably finds an innocent person to be guilty, then I'm not sure why it should then compensate the accused after the fact. There should be some requirement of either gross error or willful misconduct.

---

ITEM: In the wake of the rise of Indian gaming, it seems like new tribes are springing up all the time, even in the Twenty-First Century (see also the Native Hawaiian government proposal). Now, however, a federal appeals court has said enough is enough:

A $248 million award to the Cayuga Indian Nation of New York for land dispossession more than 200 years ago has been reversed by the 2nd U.S. Circuit Court of Appeals.

Citing a U.S. Supreme Court ruling released earlier this year, a divided circuit panel found that New York state must prevail because of the long delay by the Cayuga Nation in pursuing its claim for ejectment of the defendant land owners and immediate repossession of its land.

MY TAKE: Entirely proper. As terrible as our nation's history is regarding the slaughter of American Indian, after over two hundred years it is time to stop this nonsense. Trying to put a monetary value on 200 years of lost rental income is simply not possible, and of course neither is ejectment — soon someone will claim to be a Lenape Indian and demand the entire island of Manhattan back. The United States, and individual states, have been apologizing, with land and cash, for long enough. Every legal claim, even those arising from our greatest national sins, must eventually end. (Hat tip to Overlawyered.)