I was going to make this an ethics quiz, but there really is only one answer. The practice is ethically indefensible, and noxious too. The only question is how and why it is still occurring.
One reason may be that not enough people know about it. I certainly didn’t. Kudos to the Washington Post for shining light on a terrible, and terribly unethical, practice.
The American tort system frequently uses race and gender statistics to calculate the damages victims or their families should receive in compensation after someone is catastrophically injured or killed by another individual’s negligence or misconduct. Experts are allowed to testify regarding what a particular victim might have achieved and earned during their lives, were they not dead, or brain-damaged, or paralyzed. Race and gender are among the factors allowed into that calculation.
Writes the Post:
As a result, white and male victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
Among the examples given in the Post report is a case in which a 6-year-old girl and a male fetus were killed in the same car crash. The settlement for the fetus was calculated to be up to 84 percent higher than the girl’s, according to court records. James Woods, a forensic economist in Houston, defended the system to the Post, arguing that it was the most accurate way to calculate the losses people have a right to receive when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” he said .
But that’s the problem, isn’t it? They have no idea “what would have happened.” Nobody does. Maybe the girl would have become Jennifer Lawrence, and been a multi-millionaire before she was 30. Maybe she would get married at 19 and raise kids for 20 years. Many she would get hit by a bus. Any “scientific” determination of what a 6-year-old “would probably” earn is wild and almost certainly inaccurate speculation. Think of how much culture and society will evolve over her life span. How do we know now what kind of societal balances and factors will be in play in a few decades, affecting her income and everything else? How can any forensic economist predict that, or, frankly, claim that he is able to do so?
Every individual, regardless of gender or race, still has an unplowed field before him or her. Race and gender aren’t destiny, and if they still are, we have to take measures to see that they are not. Individual determination, character, ambition, guidance, community support, diligence, talent, ability and luck will decide what an individual earns and accomplishes (and those are not the same things) over a lifetime. Omitting these factors and others from the calculations—and they must be omitted— render them the worst kind of statistical voodoo, using numbers to quantify the unknown and unknowable.
Judge Jack Weinstein of the Eastern District of New York presided over a case in which he blocked expert testimony arguing that an injured Hispanic boy was likely to have significantly less academic achievement than if he were a white Anglo, and thus should receive less lifetime compensation for his injuries. In an optional opinion written after the jury’s verdict, Weinstein stated his contempt for the continued us of such factors in calculating damages:
“Race and ethnicity are not, and should not, be a determinant of individual achievement. To support such a proposition distorts the American Dream. A traditional, automatic, unthinking approach by experts in the field can no longer be tolerated.”