November|December 2003



GENEROUS JURIES

Plaintiffs' lawyers looking for a big tort award commonly seek out jurisdictions where the law is most sympathetic to their cause. Yet surprisingly little research has been devoted to determining what kind of juries are the most generous in awarding damages. Economists Eric Helland and Alexander Tabarrok, however, have examined data from state and federal civil courts and uncovered at least one set of strong predictors. Using census statistics to determine the percentages of black, Hispanic, and white residents of low income in local jury pools, their analysis suggests that race and income significantly affect the size of jury awards. Across the country, the chances of winning a civil trial hold level for each side at about 50-50, but when plaintiffs win, poor communities seem to yield considerably more generous juries than middle- or high-income ones, with poor black communities being the most munificent of all.

According to Helland and Tabarrok's study, an increase of 1 percent in the proportion of population that was both black and below the poverty line in a given census district correlated with a 3- to 10-percent increase in awards. Data on the impact of poor Hispanic residents in a community was more varied, but in general an increased number of poor Hispanic residents also boosted jury awards significantly. Increases in the number of poor white residents had an opposite effect, suggesting that the trends are due to race, not just poverty.

The authors hasten to point out that their data is based on community demographics, not real jury pool numbers, but they don't see any reason to suspect that the results are skewed by discrimination in jury selection. The authors also make clear that they are economists, not sociologists, and they offer little in the way of explanation: "One hypothesis that could explain our results," they venture, "is that poor black and Hispanic jurors decide cases differently than white jurors of all poverty levels." Their hypothesis seems to be that their hypothesis is true. Journal of Legal Studies, Volume 32, Number 1


THE FERTILE PRESENT

Recent clashes between fertility specialists and government regulators have centered on what science might someday be capable of doing—cloning, say. What worries Lars Noah, a law professor at the University of Florida, is something doctors are doing already: prescribing fertility drugs. Noah is concerned with the fertility drugs Clomid and Pergonal (and a host of others like them), which work by inducing ovulation. These drugs, while highly effective, increase the likelihood of pregnancies with two or more fetuses in the womb. Research has shown that multifetal pregnancies increase the risk of premature delivery, low birth weight, and other complications that can lead to developmental problems. In an article in the Florida Law Review, Noah calls for the FDA to restrict or even prohibit ovulation-inducing drugs.

Tort law, Noah points out, has not made doctors wary of prescribing fertility drugs. The relatively few lawsuits demanding that doctors, clinics, and drug companies make amends for complications resulting from the use of fertility drugs have hardly convinced the field to change its practices. In part this is because prevailing in a lawsuit requires establishing a doctor's failure to provide warnings or to emphasize the risks of the drugs.

It's rare for doctors to withhold this kind of information, but it's common for patients to ignore it. Advances in methods like in vitro fertilization, in which an embryo is created in a petri dish, have led to treatment alternatives less likely to result in a multifetal pregnancy. But these alternatives also come with a higher price tag: A round of in vitro procedures can cost upwards of $10,000, and it takes four such rounds, on average, to get pregnant. The desire of patients in fertility clinics to get pregnant quickly and cheaply may preclude their consideration of safer but slower and costlier methods, no matter what the advice of their doctor. Florida Law Review, Volume 55, Number 2



A FEW GOOD MEN

In its recent Lawrence v. Texas decision, the Supreme Court ruled 6-3 that a statute outlawing homosexual sodomy violated the Constitution's equal-protection guarantee. In his dissent, Justice Scalia declared the ruling a death knell for "all morals legislation." Giving constitutional protection to sodomy, he wrote, will lead to the disintegration of laws governing behaviors like bestiality and incest.

Whether or not Scalia's condemnation of his colleagues' judgment on sodomy represents a model of judicial conduct is the subject of much debate. God's judgment of the Sodomites in Genesis, however, does represent such a model, at least according to Timothy D. Lytton, a professor at Albany Law School. In " 'Shall Not the Judge of the Earth Deal Justly?': Accountability, Compassion, and Judicial Authority in the Biblical Story of Sodom and Gomorrah," he argues that God's conduct as judge of the cities' inhabitants represents an ideal to which secular judges ought to aspire.

In the Genesis story, God decides to speak with Abraham before visiting the cities of Sodom and Gomorrah, whose outrages he believes merit their destruction. (The cities' sins are described only vaguely, with no mention of sodomy, a term coined by monks in the 11th century.) Abraham pleads that the cities be spared if 50 innocent people can be found within, bargaining this figure down to 40, then 20, and finally 10 people. God agrees, but ultimately decides to raze both cities.

Lytton paints a portrait of a respectful and deferential God, deeply engaged in the questions of justice posed by his appellant. He interprets God's willingness to engage in debate about the cities' fate as an effort to demonstrate an ideal method of judgment to man, a reading Lytton supports with references to both the Talmud and modern rabbinical commentaries.

Yet he has surprisingly little to say about God's sentence—annihilation of both cities and their inhabitants in a rain of "brimstone and fire"—noting only that Abraham takes the lesson in stride. Law and Religion, Volume 18, Number 1