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Two-Fer: Peer Review Discovery and Memorial Damages

Today's entry is going to be shorter (honest), because mostly I'm going to point to other things, some shamelessly self-promoting.

First, on the theme of better-educated judges, I think it'd be useful to allow (in proper circumstances), discovery into the peer review process, in particular when litigation experts are relying on litigation-driven scholarship. My forthcoming Nebraska Law Review article, The Overlapping Magisteria of Law and Science: When Litigation and Science Collide, addresses the implications of both litigation-driven scholarship and discovery into peer review. In general, the academy's response to the concept of discovery into the peer review process has been hostile at best; I argue that it should be welcomed. Blog 702 has further discussion.

Second, Andrew McClurg (then of Florida International, now going to Memphis) has a fascinating article, Dead Sorrow [PDF]. McClurg provides a wrenching account of the sudden death of his fiance Kody Logan, exploring his grief and the grief of her family in coping with the (tortious) car accident that took her life. He also discusses his challenges in advising her family: "How do you explain to a mother who has just lost her only daughter that the value of her life under the law is literally zero?" (Page 6.)

Ultimately, McClurg concludes that wrongful death suits fail to account for two important aspects of a death: the value of the decedent's life itself and the grief suffered by her survivors. To deal with this failure, he proposes "damages for the lost value of life" that would

be used for the exclusive purpose of establishing a lasting memorial to the decedent. Such a solution would promote both the economic deterrence and corrective justice models of tort law and serve, albeit indirectly, to compensate the decedent by continuing his or her memory and place in this earthly world. Additionally, the memorial established with the lost life damages would, at no additional cost, provide a proven grief-healing instrument for all persons who mourn the decedent's passing. Finally, because it is recommended that memorials created with lost life damages be required to serve a utilitarian function, another unique aspect of the proposal is that it would allocate tort damages in ways that benefit society in addition to tort victims, enhancing the net social benefit of the tort system.

For additional discussion of his proposal, see Andrew's guest post and the multiple posts linked to therein, Ted Frank's comment on that post, and the interesting discussion, again featuring Ted and others, at Evan Schaeffer's Legal Underground.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.