Money can't redeem life, but don't think it doesn't help tort survivors

When my 1L Torts class studies wrongful death, I take the occasion to challenge the notion that money, based on quantified loss, is necessarily the best way to effect a liability award (cf. Prof. Andrew McClurg's gut-wrenching and classic Dead Sorrow).  Matthew R. Stevens, '21, posted the following on the class discussion board, and I think it makes a worthwhile complementary observation about tort awards in our age of debt and financial fragility.  Reprinted with permission.

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Some Thoughts on Wrongful Death Damages

by Matthew Stevens – Friday, January 25, 2019

Professor Peltz-Steele discussed the idea of money damages in wrongful death actions, and their ability to make up for what was lost. He challenged whether they really made that pain any better, and whether a $1,000,000 award helps any more than a $500,000 award. I just wanted to share my thoughts on a possible argument that the monetary damages could help make up for what is lost.

The loss of a family member is surely nothing short of a nightmare. The impending depression, stress, and various other negative emotions can impact someone’s life in irrepressible ways. No earthly remedy could ever truly provide perfect relief for such a loss. I think it could be argued, however, that money is well suited to lessen the impact of the loss.

According to a Case Western study [reported here by CNBC], increased income can actually cause a “reduction in negative emotions” (CNBC, para. 6). Furthermore, the study also found that higher incomes could “reduce the incidence of serious mental illness” (CNBC, para. 6). It is important to note that the study is dealing with annual incomes, and not large lump sums of cash. The study also notes that the increase in happiness shows diminished returns as you reach upwards of $160,000 a year (CNBC, fig. 2). I think this can be reconciled by looking at the damages award as a lump-sum salary. For example, if a father at the age of 40 received a wrongful death damages award of $1,000,000, you could divide that award by the remainder years before retirement (25) to create a net increase in annual income of $40,000. That increased “income” could statistically reduce his negative emotions, and reduce the chances of serious mental illness. An award of $500,000 would surely help, but over time it would not have as big of an effect, only creating an extra $20,000 in annual income. This of course is not a fix-all, but it is certainly a start to fix the unfixable.

Moreover, on the other side of the coin, issues with money statistically causes large amounts of stress. An APA survey in 2014 found that “72 percent of Americans reported feeling stressed about money at least some of the time during the past month” (APA, para. 3). Furthermore, 22% experienced “extreme stress” over money in the past month (APA, para. 3). The study goes even further to explain the types of issues stressing over money creates, including avoiding medical care, and being a major conflict in relationships (APA, para. 5). So then perhaps the increased monetary awards for wrongful death actions could effectively reduce stress in the claimant’s life. With a large influx of cash, it is arguable that a lot of money-induced stress would be taken out of the picture and increasing the claimant’s quality of life.

This of course was a quick look into the idea of monetary damages and their possible ability to remedy the loss of a loved one. I would like to reiterate that I don’t believe money can ever replace the loss of a loved one, but I’m simply saying there is an argument that money helps reduce the net loss of quality of life for the claimant. It does appear that the theory holds some weight, but with its issues: one major issue being the diminishing returns on happiness when income reaches a certain threshold. Perhaps this could be integrated into the analysis more, but I wanted to keep a small scope for the analysis.

Civil rights suit claims a right to education.The problem might be bigger.

My UMass Dartmouth colleague in history, Professor Mark Santow, also a member of the Providence, R.I., School Board, is part of litigation filed Wednesday, November 28, against the State of Rhode Island, claiming that the government is violating civil rights by failing to provide adequate education to youth in the public school system.

The complaint in Cook v. Raimondo, in federal district court in Rhode Island, where I reside, is available online from WPRO.  The suit was ably contextualized by Alia Wong for The Atlantic and covered by The New York Times.  Wong's piece, along with its sidebars and links, recounts the troubled history of claims to education rights under the U.S. Constitution and the unique if stubborn position of the United States in the world in refusing to add children's education to our pantheon of civil rights.

Personally I worry about the overuse of human rights language to enshrine the mundane as sacred and thereby downgrade basic human needs to aspirational wish lists—witness the dilapidated state of South African townships while the courts struggle to engineer economic rights into reality.  But I also readily admit that our 1789 Constitution, in part owing to its excessively burdensome Article V amendment process, has fallen behind the times on some omissions that, with the benefit of hindsight, seem to be no-brainers—such as sexual equality, the right to privacy, the freedom of information (a.k.a. right to access to information), and quite well arguably, rights to breathable air and basic education.

The Cook complaint smacks of activist litigation, aimed as much at media and policymakers as at the courts.  It gets around to its legal claims in number 121 of its 133 paragraphs.  Nevertheless, the claims are clever and worth pondering.  In five counts, the complaint neatly alleges violation of (1) the equal protection clause (mostly "fundamental interest," though there's a strong thread of "diversity" too), (2) the due process clause, (3) the privileges-and-immunities clause, and then—here's where things get spicy—(4) the Sixth and Seventh Amendments, and (5) the republican guarantee clause.

The Fourteenth Amendment claims are built upon a compelling background that heralds the Framers' recognition of education's essentiality to democracy, followed by a depressing account of how public education in civic virtue lately gave way to a bottom-line-oriented mill of standardized test preparation, woefully inadequately equipped and devoid of vision or values.  The story is downright Orwellian, as the complaint describes the plodding production of glassy-eyed sheep to populate America, children robbed and broken of the knowledge, skill, or will to challenge the status quo.  One wonders that Ayn Rand herself would not be persuaded to the cause of public education.

Added to the conventional Fourteenth Amendment angle are those thought-provoking latter claims about jury service and republican governance.  Citation to the Sixth and Seventh Amendments, as well as the federal Jury Act, focuses on that vital and rare obligation of citizen direct participation in government to assert a denial of rights both to the jurors who are ill prepared for the job and, consequently, the litigants and criminal defendants who depend on an informed jury to vindicate their rights.  In the final count, the republican guarantee clause is cited with indirect reference to the First Amendment ("free speech and other constitutional rights"), suggesting that an ill informed electorate can neither vote nor participate in government sufficiently to maintain representative democracy.  I can't help but think of the seemingly insoluble dilemma of money in politics, evidenced by the fealty to corporate donors pledged by our paralyzed, gerrymandered, and hardly-any-longer representative Congress.

Cook brings readily to mind the Juliana climate change lawsuit (and the Dutch Urgenda decision), about which I wrote recently.  Juliana seems doomed in the U.S. Supreme Court, if ever it were to get that far, despite a curiously indulgent ruling by Judge Ann L. Aiken in federal district court in Oregon (and later), sending the case on to trial.  It's overwhelmingly probable that the Juliana plaintiffs do not expect to win.  Rather, they seek to make a point, and they're doing so well.  So in Cook, too, as in a similar case on appeal in Michigan, the litigants have opined publicly that they hope to draw the attention of lawmakers and to stimulate public discussion—even to educate student-plaintiffs through the process, something also happening in the Juliana case, in which students appears as plaintiffs, and Judge Aiken relies deliberately on the work of student externs.  Consonantly, these cases stir up amicus feeding frenzies; NGOs in Cook already are jockeying for position to get their say on the public record.  (I'm not above it.)

As something of a separation-of-powers formalist, I'm troubled by the use of the courts for policy-making activism.  The courts are not designed for policy-making, and judges are not hired to be activists.  The late Justice Scalia famously and aptly lamented the prospect of nine black-robed "moral philosophers" in Washington, D.C., with lifetime appointments, making policy decisions for a purportedly democratic nation.  When I see a complaint that is drafted for public consumption and political persuasion rather than for judicial interrogation and a search for truth, I fear the strategy undermines whatever remains of the bar's reputation for professional integrity and objective clarity.

At the same time, this rise in judicial activism is a sign and symptom of something very broken about our democracy.  People are resorting to the courts because the political branches are not responsive.  Much as the Cook plaintiffs suggest, our system of government is failing to represent its constituents.  The complaint asserts, "Most social studies classes in Rhode Island do not discuss social problems and controversial ideas ...."  The complaint concludes: "A positive civic ethos requires all students to feel that they have a stake in the society and in its political system, and that institutions can work for them and their families in the future, even if these institutions have not been fully responsive to their needs in the past."

Whether for the right to breathable air or a basic education, a frustrated youth is turning to the courts not as a first resort, but as a last resort.  If in the end, none of our three branches of government delivers on the American promise—not the dream per se, but the opportunity to attain it—where will complainants go next?

The Brookings Institution opined in 2011:

Education has played an important role in the uprisings in the Middle East and North Africa with many commentators noting that educated youth have been integral to what has come to be called the “Arab spring.” However, what they fail to mention is that spending many years in school has failed to give many Arab youth a good education. These revolutions were not propagated by well-educated youth; these uprisings were spurred by the needs and demands of poorly educated youth, whose knowledge and skills do not meet the demands of a rapidly-advancing world.... [Despite near universal access to education,] there has been very low return on investment in terms of meaningful educational outcomes. Education systems throughout the region are hindered by low quality, irrelevancy and inequity.

Next stop: American Spring?

Money in soccer, money in higher ed: Lazio will never be Juventus; will the UMasses ever be ‘UMass’?

This morning I was reminded of this observation about football (soccer) from The Blizzard (#25, June 2017), spoken by Swedish football manager Sven-Göran Eriksson, now coaching in China, in an interview by football writer Vladimir Novak (@VNovak13):

Well, whether you like it or not, to make a winning team you need money. One could argue that Leicester has won the Premier League title even though they invested far less money than, for example, Manchester United or other clubs, but that was an exception. Fact is, in the long run, if you want to be a big club, you need money. Bayern Munich is Bayern Munich, Barcelona is Barcelona, Real Madrid is Real Madrid and so on. You cannot build a great team without money. I think you have a good example with Lazio. When I was at Lazio, Sergio Cragnotti was the chairman and owner of the club, and he invested a lot of money. And then, after he left, all changed. Lazio are still a big club. Maybe they have the chance to win the Serie A title now and then, but they are not Juventus.

The statement reminds me of why I stopped being a baseball fan many years ago.  The Baltimore Orioles were my Lazio.  They would never be the Red Sox or Yankees.

It struck me that this almost self-evident assertion is true of more than football and baseball—indeed, is true of higher education.  And in higher education, disparate resources play an out-sized role in perpetuating socio-economic disparity and widening the gap of opportunity and wealth that afflicts the United States.

In Arkansas, where I started in academics, the public higher ed system was loosely and unofficially divided in just this way.  The well-resourced University of Arkansas—the top tier never needs a geographic locator (Fayetteville)—served the state’s elite.  The slimly resourced University of Arkansas at Little Rock served an urban working class.  And the resource-starved University of Arkansas at Pine Bluff served the rural and poor—disproportionately African American.  The same dynamic described the state’s law schools in Fayetteville and Little Rock (with few graduate options in Pine Bluff).  Incentivized by monied interests, as usual in politics, the state legislature perennially resisted calls to level the playing field.  The schools themselves were complicit in maintaining the status quo.

I thought Massachusetts would take a more progressive approach with its first and only public law school in Dartmouth.  It hasn’t, at least not yet.  Boston’s many private schools fill in the top-tier options in Massachusetts, while the law school, affiliated with UMass Dartmouth, fits in at the Little Rock-like mid-level, focusing on the working-class South Coast.  The otherwise elite “UMass” (Amherst), the state flagship, has legal research resources—for that matter, research resources in any field—superior to UMass Dartmouth’s, even with no law school there.  UMass Boston might be the state’s Pine Bluff.  Each campus knows its place and stays in its socio-economic lane.

 

There is limited revenue sharing to level the playing field in European soccer and in American baseball.  Those measures resulted when, and only insofar as, the un-level playing field was recognized as a threat to the survival of the sport business model.  That’s OK; sport is business.

Higher education isn’t business.  Higher education is supposed to be about opportunity for all those who merit it.  To be clear, this is a libertarian ideal.  Higher education is about teaching people to fish, not giving fish away.  It’s potentially the best social welfare program ever conceived.

I was reminded of this sport-ed money analogy this morning when I received a text alert that the main library at UMass Dartmouth is closing because of an air conditioning failure—again.  I wonder how often the A/C fails at UMass (Amherst).  You cannot build a great library, law school, university, or team without money.

As a society, we have to come to grips with the role of money in higher education—especially the money managed by foundations that purport independence and entitlement to opacity despite being under the direct control of supposedly transparent public universities.

We have to decide whether higher ed will continue to be part of the wealth-and-opportunity gap problem or part of the solution.  The UMass campuses east of Amherst deserve more than an occasional title.  They should all be Juventus.