When a petit jury in a civil tort action awards damages for pain and suffering, it does not award damages that compensate, or that indemnify, or that provide restitution to the injured party—the traditional functions of damage awards. Damages that are awarded for pain and suffering are probably intended as a pecuniary bonus or gift in an amount thought roughly to reference the pain suffered or expected to be suffered. But there seem to be no rational, predictable criteria for measuring these damages. For that reason, there are also no criteria for reviewing pain and suffering awards by the presiding judge or by an appellate court. Without rational criteria for measuring damages for pain and suffering, awarding such damages undermines the tort law’s rationality and predictability—two essential values of the rule of law. Yet it is this irrationality in awarding money for pain and suffering that provides the grist for the mill of our tort industry, which is now estimated to have grown to $200 billion.
This Essay addresses the tension between the community’s desire, through the rule of law, to compensate injured victims for pain and suffering and the problems that have arisen in authorizing awards of damages that are irrationally quantified.
To address a problem that is so widely tolerated might be daunting, but I submit that the appropriate response need not be invented from scratch. There is a model from an analogous problem that can be explored and adopted in material respects. This model is shaped by the actions of the several States that have responded to the rise of punitive damages during the past fifty years.