Federal agencies adopt a uniform VSL (value of statistical life)—one that does not vary according to demographic characteristics—in conducting cost-benefit analyses in connection with regulatory policy decisions. In sharp juxtaposition, the use of race- and gender-based statistics on wages and work-life expectancy in calculating tort wrongful death damage awards is an entrenched practice among forensic economists who serve as expert witnesses in tort litigation. The conventional use of race- and gender-specific economic data concerning wages and work-life expectancy in calculating tort damages leads to unjustifiable disparities in awards for blacks and women. Young female and minority tort victims bear the particular brunt of the effects of discriminatory and inaccurate data, given that their expected wages cannot be extrapolated from past earning history but instead must be based on the gender- and race-based tables.
Law and economics scholars have noted that wrongful death damages in tort—based primarily on earnings losses to survivors—grossly underdeter. A damage award based on employment statistics (even those for white men) will not produce adequate deterrence against accidents causing death. In order to effectuate the deterrence goal of tort law, scholars have argued that courts should change the existing method of pricing wrongful death in tort and instead incorporate the VSL methodology used by federal agencies.
In this Essay, I provide an additional argument for switching to the VSL methodology used by agencies: incorporating a uniform VSL would ameliorate the hitherto unaddressed and unjustified race and gender bias in tort awards. The substitution of a uniform VSL for race- and gender-based statistics addresses the racialized and gendered deterrence gap that has led to skewed incentives for actors to take precautions against harms to blacks and women. Moreover, with regard to the inevitable underdeterrence/overinsurance tradeoff that arises in formulating wrongful death damages, the “cost” of the overinsurance/overcompensation can be viewed as the “price” paid in order to provide equitable treatment across demographic groups, to ensure that defendants respect the same uniform duty of care for all plaintiffs, and to eradicate the perverse incentives for adverse risk allocation.
Catherine M. Sharkey,
Valuing Black and Female Lives: A Proposal for Incorporating Agency VSL into Tort Damages,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol96/iss4/6