Prof. David Hoffman.

Blawgletter read this morning the Sidebar column by Adam Liptak in the NYT.  (Sorry; you have to read the paper version or subscribe to TimesSelect to see it.)  The item — "When Lawyers and Juries Mete Out Punishment" — attributes a jury’s $290 million punitive damages award to a Ford Motor Company lawyer’s "stupid" question.  Mr. Liptak deploys the example to conclude that America needs a "more sober" method than trial by jury to assess civil penalties for civil wrongs.

Mr. Liptak doesn’t say so, but his views echo academics who propose to substitute bureaucrafts for jurors.  See David A. Hoffman, How Relevant Is Jury Rationality?, 2003 U. Ill. L. Rev. 507 (reviewing Punitive Damages:  How Juries Decide).  The Liptakian perspective holds that juries set punitive damages irrationally — more particularly, that they don’t weigh costs and benefits of a defendant’s behavior in determining an economically efficient level of punishment and deterrence.

Blawgletter supposes that Mr. Liptak hasn’t read Professor Hoffman’s puncturing of the irrational juror analysis.  For, as Professor Hoffman explains — bravely, no doubt, while a junior associate at Cravath, Swaine & Moore LLP — most Americans don’t accept the cold reckoning of cost-benefit analysis as the keystone to meting out civil punishment and deterrence for reprehensible conduct.  The law-and-economics set equates jurors’ desire for case-specific justice with irrationality.  And, sharing as they do a Liptakian longing for a "more sober" approach, they would cure the disease of illogic with government experts wielding spreadsheets, graphs, and charts to achieve a more perfect weighing of costs and benefits.

Leave to one side, please, the truth that juries award punitive damages in less than 10 percent of the less than 10 percent of the cases that go to trial.  Also ignore for the moment that jurors often do a terrific job of choosing an appropriate level of punitive damages.  Never mind that Ford’s trial lawyer may not have committed a momentary lapse but instead reflected his client’s true attitude toward the plaintiffs.  And forget, we implore you, that — even in the astronomically small number of cases in which a jury oversteps (as Mr. Liptak believes one jury did in awarding $290 million) — judges reliably fix the problem (as indeed they did in the case Mr. Liptak cites, reducing the award to $23.7 million).

Of course, a simpler explanation for Mr. Liptak’s column may exist.  Before becoming a newsie in 2002, according to his biography, Mr. Liptak worked four years in a defense firm, Cahill Gordon & Reindel, and 10 years in the NYT’s law department, defending it against defamation and other claims. 

Lots of people complain about liberal media bias.  Could this column result from just plain old media bias?

Barry Barnett

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