Document Type

Article

Publication Title

Hofstra Law Review

Abstract

The process by which pain and suffering damages are awarded in the United States has been aptly called "procedurally simple but analytically impenetrable." As the same author goes on to say, "[t]he law provides no guidance, in terms of any benchmark, standard figure, or method of analysis, to aid the jury in the process of determining an appropriate award." This state of affairs has prompted the attention of several commentators who have criticized the existing regime and suggested a variety of thoughtful proposals to improve the situation. In addition to describing the problem and some of the suggested solutions in the literature, I will present a new proposal. Apart from those who would dispense with non-pecuniary damages entirely, all of the suggestions of which I am aware (including my own) seek to enhance analytic coherence, but do so at the price of procedural simplicity and most would restrict the scope of the jury's authority. If reform is to be made at all, the question "how?" must be answered by setting procedural loss against analytic gain. The proposal offered here preserves the power of the jury, enhances the jurors' ability to make an informed decision, and eschews procedural complexity.

First Page

763

Volume

23

Publication Date

1995

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