About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

19 Ohio St. L.J. 158 (1958)
The Jury, the Law, and the Personal Injury Damage Award

handle is hein.journals/ohslj19 and id is 168 raw text is: THE JURY, THE LAW, AND THE PERSONAL INJURY DAMAGE AWARD* HARRY KALVEN, JR.** A few years ago Professor Jaffe in one of his customarily wise and urbane articles1 observed: I suggest that the crucial controversy in personal injury torts today is not in the area of liability but of damages. I think he is right on several counts. First, the criticism of personal in- jury awards today is at least as much concerned with their level as with their frequency. Second, it is my impression that on the bar's view the difference between lawyers-at least plaintiff lawyers-is measured more in terms of what they would get in a given case than it is in terms of winning or losing. Again, as a matter of simple arithmetic there is of course a greater difference between a $30,000 and a $10,000 verdict than there is ,between a $10,000 one and a verdict for the defendant. And finally to pick up the point Professor Jaffe was most concerned with-it is selecting the appropriate award level that is the most trouble- some issue in proposals to shift areas of tort to strict liability compen- sation schemes.2 Professor Jaffe went on in the passage quoted to wonder why damages received so little attention in law school study and in the second- ary literature on tort.3 Questions of liability, he continued, have great doctrinal fascination. Questions of damage-and particularly their magnitude--do not lend themselves so easily to discourse. Professors dismiss them airily as matters of trial administration. Judges consign *This article owes a major debt to the work of several colleagues on the jury project; in particular, to Fred Strodtbeck, Hans Zeisel, Dale Broeder, and to Allen Barton, Saul Mendlovitz, Rita James, and Philip Ennis. Their work will in the reasonably near future be published in its own right. The debt is to the stimulus of innumerable discussions as well as to their data. **Professor of Law, University of Chicago; Director, Jury Project. 1 Jaffe, Damages for Personal Injury: The Impact of Insurance, 18 LAw & CONTEMP. PRoB. 219, 221 (1953). 2Professor Jaffe's principal point is that there is a serious tension today between the drive on the one hand to extend liability coverage and the drive on the other to make damages increasingly comprehensive and civilized. This tension is vividly illustrated in the current controversies over FELA. Here it is recognized on both sides that the employees have for the moment the best of two possible worlds-a dc facto strict liability system combined with common law jury damages. It is also the point of Professor Morris' shrewd remark that if an auto compensation plan finally comes it will be as a result of its sponsorship by defendants. MORRIS, TORTS 374- (1953). See also the handling of the award level in EHRENZWEIG, FULL AID IN SURANCE FOR THE TRAFFIC VICTIM (1954) and Kalven, Book Review, 33 Texas L. Rev. 778 (1955). 3 The point is perhaps no longer quite so true as it once was. The Shulman- James and Smith-Prosser casebooks do have sections on damages. The recent Harper and James treatise on torts devotes a full chapter to it.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most