Intuitions about Penalties and Compensation in the Context of Tort Law

Abstract

Students, retired judges, economists, and others made judgments of appropriate penalties and compen,sation for hypothetical injuries. In some scenarios, compensation was paid by the government and penalties were paid to the government, so the two could differ. Penalties were generally uninfluenced by their deterrent effect on future behavior. Penalties were greater when they were paid directly to the victim than when they were paid to the government. Compensation was affected by whether injuries were caused by people or by nature, or by acts vs, omissions. These effects are not justified according to consequentialist views of penalties and compensation. We suggest that people are overgeneralizing reasonable rules and that such overgeneralization may be involved in perverse effects of tort law.Key words: tort law, penalties, compensations, intuitive judgments When one person (or group) harms another, people often think that the injurer should compensate the victim. Tort law can compel compensation. Such a transaction not only compensates the victim but also punishes the injurer. When the injurer compensates the victim, as when a child is induced to give back something she has taken or when a victim sues an injurer in court, punishment and compensation are linked together. Sometimes these functions are separated. Criminals are punished whether or not their victims are compensated. Insurance (private and social) provides compensation for misfortunes regardless of whether they are caused by people or nature, and regardless of whether the insurer collects from the injurer.In the studies described here, we sought to understand how people think about punishment and compensation in the context of hypothetical cases in which people are killed or injured by birth-control pills or vaccines. These are typical situations in which lawsuits against companies occur. Some of our cases separated punishment and compensation, so that we could learn how people think about each function alone.

Thinking About Global Warming

“…People who oppose government regulation tend to distort facts so as to convince themselves that no regulation is needed. They also convince themselves that uncertainty will be resolved in their favor (Baron et al, 1990). They may even endorse or accept unsupported scientific positions, such as the belief that climate change is not occurring.…”

“…For example, subjects in one study were willing to contribute about $19 to an international fund to save Mediterranean dolphins when the dolphins were "threatened by pollution" but only $6 when the dolphins were "threatened by a new virus." Similarly, in another study, subjects thought that compensation for injuries such as infertility should be greater when the injury is caused by a drug rather a natural disease, even if the penalty paid by the drug maker does not affect the amount of compensation paid to the victim (Baron and Ritov, 1993).…”

what's in a heuristic?

“…Consider, for example, an intriguing study of people's judgments about penalties in cases involving harms from vaccines and birth control pills (Baron & Ritov 1993). In one case, subjects were told that the result of a higher penalty would be to make companies try harder to make safer products.…”

“…The moral puzzles arise when life, or a clever interlocutor, comes up with a case in which there is no morally relevant distinction between acts and omissions, but when moral intuitions (and the homunculus) strongly suggest that there must be such a difference. As an example, consider the vaccination question discussed earlier; many people show an omission bias, favoring inaction over statistically preferable action (Baron & Ritov 1993). Here an ordinarily sensible heuristic, favoring omissions over actions, appears to produce moral error.…”

“…According to this heuristic, people's punishment judgments are a product of their outrage. This heuristic may produce reasonable results much of the time, but in some cases, it seems to lead to systematic errors -at least if we are willing to embrace weak consequentialism.Consider, for example, an intriguing study of people's judgments about penalties in cases involving harms from vaccines and birth control pills (Baron & Ritov 1993). In one case, subjects were told that the result of a higher penalty would be to make companies try harder to make safer products.…”