Injured Kids, Injured Parents and Tort Law

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6 Responses

  1. Orin Kerr says:

    I don’t have a comment on the substance, but I wonder if you would consider changing the labels you are using. By calling the first approach “20/20,” the second “astigmatism,” and the third “blindness,” you are suggesting that you see the first position as the only one that a thinking person could adopt. If I understand the argument correctly, that framing leads you to ask, in effect, “how could people be so clueless as to not adopt the correct view?” That approach is going to turn off any readers who don’t already agree with you, which I think is likely to limit the readership (and therefore impact) of your paper.

    I think you might reach a broader audience if you used neutral labels for the three positions and then argued that the first position is the best one. You would end up making the same arguments:t he argument “people who have wrong belief X instead of correct belief Y do so because they do not realize fact Z” can be readily recast as “Belief Y is superior to belief X because of fact Z.” But I suspect the different framing might help the paper reach a broader audience.

  2. Jimbino says:

    Apparently, there is no reason a thoughtful non-breeder would EVER engage in an activity in which children are allowed to participate, unless the the parents are required to sign waivers.

    For that reason, the single and childfree might find it appropriate to hang out in bars and foreign countries, attend art museums featuring nudes or strip clubs, climb Everest or scuba dive.

    The childfree, already severely burdened by their forced support of public mis-education, are apparently also being placed at exceptional financial risk for injury to one of the brats.

  3. Sykes Five says:

    I agree with Professor Kerr that, based on your framing, it’s hard to avoid the conclusion that the “20/20” view is the correct one. So I can’t really imagine a response to your question about which rule is best.

    A better question might be what reason for the rules other than “20/20” is most convincing. I am not sure if the reasons you present are your own inventions or if you have read them in scholarly commentary or decisional law.

    With my ignorance thus established, I wonder if there is another possibility: the message about the value of life sent by tort awards.

    Consider that the total cost of care for a profoundly disabled child may exceed the amount that would have been awarded for wrongful death had the child died. Perhaps the a reasonable wrongful death award would have been a million dollars but the cost of medical care, therapy, missed parental work, etc. is several millions of dollars.

    But this may be taken as a suggestion that the child’s injury is a fate worse than death, or that the parents are suffering more by having to raise an injured child than burying a dead one, or even that the tortfeasor would have been better off had the child died. (Surely, the last thing we want is some careless driver–or his insurer–lamenting that he injured rather than killed a child!)

    These all seem like debatable propositions and touch upon other issues of societal concern about which there is no consensus.

  4. Horspool says:

    Although I am persuaded, already, that damages for injuring a minor should include compensation for the extra burdens thereby placed upon her guardians, I cannot allow your casual and tendentious statement “Since, for reasons of both gender and race, we pay very little for caregiving jobs…” to pass unremarked.

    Perhaps you were ill the day the rest of the students studied basic economics, but the chief reason low-skilled labor is not highly paid is because many workers compete to do it. The fewer the special qualifications for any job,* the less it pays. This has approximately nothing to do with the gender,** and very little to do with the race,*** of low-skilled workers.

    *Of course there are sinecures which offer high pay for little work– but they do demand special qualifications, such as being a close relative of some plutocrat.

    **Nonsense from “comparable worth” activists aside, the reason low-skilled male-dominated jobs like ditch-digger pay more than low-skilled female-dominated jobs like day-care assistant is that the former do have tougher qualifications (brute strength) and worse working conditions (likelihood of injury) so must pay more to compete for workers.

    ***Average academic achievement varies by race so different proportions of workers of various races fall into the low-skilled category, but low-skilled jobs command low wages everywhere regardless of the local racial mix– so there is no reason to think that racism causes low wages for low-skilled work.

  5. Jim D says:

    I completely agree that compensations for a child’s parents should be included. But I also have to agree about the “Since, for reasons of both gender and race, we pay very little for caregiving jobs…” Yes there is still some sexism in the world but caregiving jobs salaries have nothing to do with gender or race.

  6. Glenn says:

    As a personal injury lawyer Dallas Tx,I think there is a need of little amendments concerning child injury laws.It’s way too broad.. So what we have to do is to specify certain aspects that can give the most assurance of a child’s welfare as well as to the parents.