STATE OF THE UNION AND RECOMMENDATIONS

Foxfyre wrote:

...
This, however, is going to require the tort reform part of the equation to relieve doctors and hospitals of liability if they don't over prescribe or over test or whatever to avoid lawsuits. Then we can hash out whether government insurance or private insurance is the way to go and how best to make that affordable.

The one thing I don't think we can shake is that medicine was much more affordable before the government became involved with it, and education was far superior to what we have after the feds started meddling with it. Is federal involvement the problem? Or were the problems inevitable?

And yes, I agree there is no consitutional provision for the federal government to be involved with either. I'm not entirely convinced it is illegal for it to be involved, however.

Yes, tort reform is an essential part of the equation. And, yes medicine was much more affordable before the feds stepped in. And yes, again, education was superior before the feds stepped in to that.

Also education was much more affordable when the feds only provided the GI Bill, a kind of voucher system. I, without help from the GI Bill, was able to work my way through college working summers between classes. My kids couldn't do that. Working a lot harder than I did, the best they could do is provide 50% of their college costs. My wife and I paid the rest. My grandkids won't be able to go to college without 90% loans and/or scholarships AND their parents and grandparents aid.

Any power not expressly delegated by the Constitution to the government that is nonetheless exercised by the government is illegal by definition. The Preamble to the Constitution is a statement of the purpose of the Constitution and not a statement of powers delegated to the government. The Articles and Amendments to the Constitution are statements of the powers the government is expressly delegated, or in many cases, is expressly denied in order to achieve the Preamble's stated purpose.

Please let me know why you are not entirely convinced about my interpretation of the Constitution.

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IRAQ STATUS REPORT

MEASURABLE PROGRESS TOWARD ACHIEVING GOAL (A):
Stop the terrorists and Saddamists from threatening Iraq's democracy.

http://www.weeklystandard.com/Utilities/printer_preview.asp?idArticle=3889&R=C495A28
Saddam Hussein’s regime murdered more than 576,000 Iraq civilian men, women, and children over the 24 years or 288 months from 1979, when Saddam became president of the Iraq government, to 2003, when Saddam was removed by the Coalition.

On average, Saddam’s regime murdered more than 2,000 Iraq civilian men, women, and children per month over the 288 months from 1979 to 2003.

http://www.iraqbodycount.org/database/
Saddamists and al-Qaeda murdered, and Coalition killed 31,928 Iraq civilian men, women, and children over the 37 months from 1/1/2003 to 1/31/2006.

Saddamists and al-Qaeda murdered, and Coalition killed 609 Iraq civilian men, women, and children over the 1 month from 1/1/2006 to 1/31/2006.

Thus, Saddamists and al-Qaeda murdered, and Coalition killed 31,319 Iraq civilian men, women, and children over the 36 months from 1/1/2003 to 12/31/2005.

On average Saddamists and al-Qaeda murdered, and Coalition killed 863 Iraq civilian men, women, and children per month over the 37 months from 1/1/2003 to 1/31/2006.

However, on average, Saddamists and al-Qaeda murdered, and Coalition killed 870 Iraq civilian men, women, and children per month over the 36 months from 1/1/2003 to 12/31/2005.

Consequently, over this past January, the monthly average changed from 870 to 863, a reduction of 7, and that is surely some measurable progress.

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Ican writes

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Please let me know why you are not entirely convinced about my interpretation of the Constitution.

It is mostly because I have not thought it through enough to be entirely comfortable with my own opinion on this. This is another way of saying that you may be absolutely right, but I just haven't yet arrived at that conclusion myself.

I was taught that the 10th Amendment conveys the truth that "all is retained that has not been surrendered" and that suggests both a right to retain and a right to surrender. When you consider the breadth and depth of constitutional responsibilities regarding defense, policing, trade, and necessary regulation, we might have to look at what the Federal government has appropriated and what the states have voluntarily surrendered to determine legality. I don't know. But maybe in the course of these discussions, I'll know more. Smile

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The constitution has nothing in it regarding speed limits, yet we have them.

The constitution needs to be seen as the bedrock of our govermant from which our laws have sprung and transformed over the last 230+ years. We have many laws about things in the books that are not found within the confines of the constitution, yet they are legally binding.

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Foxfyre wrote:

ican711nm wrote:
Please let me know why you are not entirely convinced about my interpretation of the Constitution.

It is mostly because I have not thought it through enough to be entirely comfortable with my own opinion on this. This is another way of saying that you may be absolutely right, but I just haven't yet arrived at that conclusion myself.

I was taught that the 10th Amendment conveys the truth that "all is retained that has not been surrendered" and that suggests both a right to retain and a right to surrender. When you consider the breadth and depth of constitutional responsibilities regarding defense, policing, trade, and necessary regulation, we might have to look at what the Federal government has appropriated and what the states have voluntarily surrendered to determine legality. I don't know. But maybe in the course of these discussions, I'll know more.

You've made an interesting point: "we might have to look at what the Federal government has appropriated and what the states have voluntarily surrendered to determine legality."

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Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Parsing the 10th:
(1) Powers not delegated to the United States by the Constitution
(2) Powers not prohibited by the Constitution to the states

are reserved to X

What is X?

X is:
(1) The states; or,
(2) The people.

One thing X is certainly not: X is not the United States (i.e., the United States government -- the feds).

So the way I read the 10th is that if the Constitution does not delegate a power, say P, to the feds, then the feds do not legally have that power P and cannot get that power P unless the Constitution is legally amended so as to delegate that power P to the feds. Only the states can ratify (i.e., adopt) such an amendment. Also that is the only legal way the states can "surrender" a power P to the feds.

The only legal way the Constitution can be amended is as specified by:

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Article V
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The status of the Constitution itself is specified (my emphasis added) in:

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Article VI
All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

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McGentrix wrote:

The constitution has nothing in it regarding speed limits, yet we have them.

The constitution needs to be seen as the bedrock of our govermant from which our laws have sprung and transformed over the last 230+ years. We have many laws about things in the books that are not found within the confines of the constitution, yet they are legally binding.

We have a lot of federal laws. Some are legal under the Constitution and some are illegal.

I think the power to set speed limits on federal roads, while not explicitly delegated is logically, implicitly delegated. Thus I think speed limits are logically implicitly legal under the Constitution per the statements emphasized below.

emphasis is mine

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Article I.
Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

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Actually I think the states set all speed limits even on federal highways that pass through the states. Where the federal government manipulates that as happened during the 55 mph era is to withhold federal highway monies from states who don't comply with a federal mandate.

But when it comes to legality, look how much wiggle room there is in this provision:

Quote:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

That general welfare clause in Section 8 is the one that I think the federal government, especially the Left leaning members, can use to apply to just about anything. Unfortunately it also mandates that a one-size-fits-all mandate is required. As visionary as they were, I don't think our founders ever in their wildest dreams envisioned a country as big, as heavily populated, and as diverse as the United States of American has become. If they did, I think they would have written Section 8 much differently.

Come to think of it, isn't a "Section 8" assigned to military personnel who are diagnosed with a screw loose?

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Foxfyre wrote:

Actually I think the states set all speed limits even on federal highways that pass through the states. Where the federal government manipulates that as happened during the 55 mph era is to withhold federal highway monies from states who don't comply with a federal mandate.
I think that choosing to "withhold federal highway monies from states who don't comply with a federal mandate" is a significant exercise of fed power whether or not the fed limits itself -- it doesn't -- to setting a particular speed limit for interstate highways.

But when it comes to legality, look how much wiggle room there is in this provision:

Quote:
Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

That general welfare clause in Section 8 is the one that I think the federal government, especially the Left leaning members, can use to apply to just about anything. Unfortunately it also mandates that a one-size-fits-all mandate is required. As visionary as they were, I don't think our founders ever in their wildest dreams envisioned a country as big, as heavily populated, and as diverse as the United States of American has become. If they did, I think they would have written Section 8 much differently.

Yes, this is the clause that has frequently, illegally been used to justify "just about anything:"

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provide for the common defense and general welfare of the United States

However, I think it fortunate that it requires "one-size-fits-all" mandates. Otherwise, Congress would legally rather than illegally-- as it does now -- mandate programs to satisfy only those specific groups of citizens with the most votes or the most campaign contributions.

But do not forget this clause in your post:

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but all duties, imposts and excises shall be uniform throughout the United States

www.m-w.com

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Main Entry: 1im·post
Pronunciation: 'im-"pOst
Function: noun
Etymology: Middle French, from Medieval Latin impositum, from Latin, neuter of impositus, past participle of imponere
: something imposed or levied : TAX

The power to tax income specified in the 16th Amendment is an impost. But the income tax as implemented is not "uniform throughout the United States" and is therefore not legal on that account, because the 16th Amendment does not specify that the income tax can be legally not uniform throughout the United States. For example, there is nothing in the 16th Amendment that grants Congress the power to tax a person's income dollars at different -- non-uniform -- rates depending on how many such dollars a person earns in a given year. That is a flagrantly illegal tax power because it is not truly uniformly applied throughout the United States.

Quote:

Amendment XVI (1913)
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.

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Ican writes

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However, I think it fortunate that it requires "one-size-fits-all" mandates. Otherwise, Congress would legally rather than illegally-- as it does now -- mandate programs to satisfy only those specific groups of citizens with the most votes or the most campaign contributions.

A quick aside: that the Federal government can use a monetary club to exact 'surrender' of states rights re speed limits, etc. is not quite the same thing as forcing the states to surrender rights. At least the state does have the right of refusal by accepting the consequences of refusal.

But somewhat related and in direct response to the 'one-size-fits-all' mandate, why can't it be enlarged on the spending side? On another thread (or perhaps at a different site--I can't remember), I quoted a Walter Williams essay suggesting that the way to eliminate most of the monetary influence/pressures on Congress is to pass one simple provision:

Whatever benefit Congress offers to one person/group, it must offer
to everybody. In other words, if you're going to pay one group a
subsidy to not raise pigs, you have to give the same subsidy to
everybody who doesn't raise pigs. You can't pass a regulation
that benefits one industry without giving all industries the same
benefit, etc. (I'm really paraphrasing here.)

This would effectively pull the teeth of all lobbyists and special interest groups wanting favors for themselves as any favors granted would benefit everybody. And that would essentially eliminate the incentive and ability of congress to favor anybody.

That just might push all this stuff back to the states where it belonged in the first place?

I'm sure there's a million holes in this theory, but it sure looks good at face value.

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Foxfyre wrote:

...

But somewhat related and in direct response to the 'one-size-fits-all' mandate, why can't it be enlarged on the spending side? On another thread (or perhaps at a different site--I can't remember), I quoted a Walter Williams essay suggesting that the way to eliminate most of the monetary influence/pressures on Congress is to pass one simple provision:

Whatever benefit Congress offers to one person/group, it must offer
to everybody. In other words, if you're going to pay one group a
subsidy to not raise pigs, you have to give the same subsidy to
everybody who doesn't raise pigs. You can't pass a regulation
that benefits one industry without giving all industries the same
benefit, etc. (I'm really paraphrasing here.)

Paraphrase or not, I love it!

This would effectively pull the teeth of all lobbyists and special interest groups wanting favors for themselves as any favors granted would benefit everybody. And that would essentially eliminate the incentive and ability of congress to favor anybody.

That just might push all this stuff back to the states where it belonged in the first place?

As we sometimes say in Texas, Yee Haw!

I'm sure there's a million holes in this theory, but it sure looks good at face value.

If the feds wish to subsidize some, they will have to subsidize all.

If the feds wish to put some on welfare, they will have to put all on welfare.

If the feds wish to tax some at 40% (or 13%), they will have to tax all at 40% (or 13%).

If the feds wish to give some an annual $1,000 education voucher, they will have to give all an annual $1,000 education voucher.

If the feds wish to transfer wealth from some to others, they will have to transfer wealth from all to all.

Hmmm .... if the feds want to transfer a $1,000 each from some and give a $1,000 each to others, they will have to transfer a $1,000 each from all and give a $1,000 each to all.

Not much political power in any of that, is there?

OK! As much as I do not want to, let's look at the possible downside (i.e., possibility of a "million holes").

What about the physically and/or mentally handicapped? They are only a small portion of the population, but if the feds were to help them, under Walter Williams's proposal the feds would have to provide the same help to all physically and/or mentally handicapped plus to all those not physically and/or mentally handicapped.

Solution: Do not let the feds help the physically and mentally handicapped! Leave it to private charities to do that. They will more likely provide effective help custom tailoring their help to the wide differences in the kind and degree of handicaps.

But what if the private charities do not get enough contributions to do all they think is required? They'll have to budget their help appropriately. Besides Americans are far too charitable to fail to help others who truly require it (e.g., private aid to Katrina victims examle: a huge number of businesses and private pilots flew medicines, food, clothing, transportation, shelter, etc. to working airports in Louisiana). Also private charities will concentrate on helping people to help themselves, thereby relieving themselves of their clientele as soon as practical in order to make sure they have enough for those who truly continue to require it.

The only hole I can currently perceive is possibly one caused by a ubiquitous human flaw, that if not addressed, will scuttle the whole program. Envy! I believe that most of the wealth transfer programs that are currently on the books are not really motivated by a sincere desire to help the less fortunate, but are there to reduce what others accumulate or accomplish. In other words, they are on the books to cut down competition, by entrapping others into a permanent state of dependence.

How shall we manage control of that flaw and get everyone to root for everyone to excel regardless of how well everyone one is doing? Yes, get everyone to root for everyone more accomplished then themselves as much as they root for those less accomplished than themselves.

I don't know the answer. Teaching the envious what is actually in their own self-interest is perhaps one way. However, I've noticed that a large percentage of the envious knowingly do not serve their own self-interest by the way they express their envy.

I personally root for Bill Gates to double his fortune by providing double the value he has up to now provided. Besides I know that Bill doubling his fortune that way is in my own self-interest in that it increases the probability I will get what I want whether that be Bill's intention or not.

According to my envious acquaintenances that makes me weird. Rolling Eyes

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Ican writes

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OK! As much as I do not want to, let's look at the possible downside (i.e., possibility of a "million holes").

What about the physically and/or mentally handicapped? They are only a small portion of the population, but if the feds were to help them, under Walter Williams's proposal the feds would have to provide the same help to all physically and/or mentally handicapped plus to all those not physically and/or mentally handicapped.

I think with the right motivation this would not be a problem. That a person does not raise pigs is not affected by his/her physical or mental abilities. Therefore, those with physical and mental disabilities could be helped without compromising the spirit of uniformity so long as everybody with physical and mental disabilities were afforded the same benefits.

However, because there is so much opportunity for fraud and deception--and because there are such degrees of mental and physical disability--I'm not sure the Federal government should be involved in this at all. Perhaps some kind of regulated incentive to encourage the private sector to provide necessary benefits would be the route to go here.

I do believe that a moral society does provide for those who cannot help themselves, but I'm not convinced that federal programs are the only or even the most often best way to do that. And of course you agree with your statement folowing:

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Solution: Do not let the feds help the physically and mentally handicapped! Leave it to private charities to do that. They will more likely provide effective help custom tailoring their help to the wide differences in the kind and degree of handicaps.

Quote:

But what if the private charities do not get enough contributions to do all they think is required? They'll have to budget their help appropriately. Besides Americans are far too charitable to fail to help others who truly require it (e.g., private aid to Katrina victims examle: a huge number of businesses and private pilots flew medicines, food, clothing, transportation, shelter, etc. to working airports in Louisiana). Also private charities will concentrate on helping people to help themselves, thereby relieving themselves of their clientele as soon as practical in order to make sure they have enough for those who truly continue to require it.

There are no more generous and benevolent people on Earth than are Americans. And I have no problem believing that the Federal government passing laws and policies that enable private charities to meet whatever needs are out there will take care of that. It may be necessary to give people incentive to contribute (tax deductions or possibly even tax credits) and it is important to continue to relieve such organizations providing services from tax pressures so they can keep services affordable. But this is already pretty well uniformly applied.

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The only hole I can currently perceive is possibly one caused by a ubiquitous human flaw, that if not addressed, will scuttle the whole program. Envy! I believe that most of the wealth transfer programs that are currently on the books are not really motivated by a sincere desire to help the less fortunate, but are there to reduce what others accumulate or accomplish. In other words, they are on the books to cut down competition, by entrapping others into a permanent state of dependence.

How shall we manage control of that flaw and get everyone to root for everyone to excel regardless of how well everyone one is doing? Yes, get everyone to root for everyone more accomplished then themselves as much as they root for those less accomplished than themselves.

I don't know the answer. Teaching the envious what is actually in their own self-interest is perhaps one way. However, I've noticed that a large percentage of the envious knowingly do not serve their own self-interest by the way they express their envy.

Well, making it unproftable for lobbyists, etc. to curry favor from elected officials makes it more difficult for elected officials to excessively enrich themselves in public service. And, I think it was Thomas Sowell, one of my other mentor idols, who offered a solution for the quality of people we elect to Congress. Pay them $1 million a year with a very modest cap on their retirement plans and expense accounts and make it a federal offense for them to accept ANY gifts, benefits, or favors from private citizens or businesses while in office.

So now we've removed the profit motive for the lobbyists, the greed motive for serving in office, and the higher wage ensures that less-than-filthy rich people can afford to serve while being a drop in the bucket compared to the congressional pork that is now shoveled out of Washington at taxpayer expense.

Then we need to find high caliber, capable people to send to Washington who can explain how everybody will benefit from different policies that enable everybody to succeed and hold nobody back. I think we need another Ross Perot who isn't Perot to communicate this. Smile

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I personally root for Bill Gates to double his fortune by providing double the value he has up to now provided. Besides I know that Bill doubling his fortune that way is in my own self-interest in that it increases the probability I will get what I want whether that be Bill's intention or not.

Oh me too. We need to keep beating the drum that it is no crime to be rich, that confiscating too much wealth from the rich invariably hurts the poor, and teach the kids what they need to do to be rich. (Don't have kids outside of marriage, don't do drugs, finish school, learn a trade, be willing to work at McJobs to develop a work ethic and references, etc.)

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According to my envious acquaintenances that makes me weird.

Let's hope then that there is a lot more weirdness in the world.

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Ok Foxfyre, now I'm in the mood to discuss tort reform.

What do you think of this formula?

No tort award in a legal suit should exceed four times actual damages.

Here's where that four comes from:
(1) Actual Damages;
(2) Punitive Damages should not exceed actual damages;
(3) Pain and Suffering should not exceed actual damages;
(4) Reimbursed Legal Expenses should not exceed actual damages.

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ican711nm wrote:

Ok Foxfyre, now I'm in the mood to discuss tort reform.

What do you think of this formula?

No tort award in a legal suit should exceed four times actual damages.

Here's where that four comes from:
(1) Actual Damages;
(2) Punitive Damages should not exceed actual damages;
(3) Pain and Suffering should not exceed actual damages;
(4) Reimbursed Legal Expenses should not exceed actual damages.

In my A2K profile, I stated that due to fate or even predictable circumstances, I have had opportunity to make a living doing a lot of different kinds of things in my lifetime.

One of those things was serving as media laison and information officer for a large hospital which meant I was privy to all the inside stuff such as malpractice suits and other legal issues. Another one of those things was working as an insurance adjuster including handling personal injury and product liability claims and again this put me working closely with both plaintiffs' and defendents' counsel.

So based at least in part on my experience, I think the following:

1) How do you determine 'actual damages' when it is the loss of a life or a limb or a bodily function due to the negligence or carelessness of another? This is and has always been the unquantifiable element of these kinds of suits. Thus limiting a tort award to any multiple of 'actual damages' is meaningless when there is no way to quantify the 'actual damages'.

2) Realistically there are degrees of negligence andor willful endangerment. Personally I think the injured is deserving of more when a hazard was intentionally concealed or created than the injured should receive in an inadvertent accident that the injured could have avoided. In the first scenario punitive damages are appropriate. In the second, in my opinion the person should be at most entitled to med pay and maybe some loss of income.

I am very big on no damages or even med pay being awarded at all in cases where there is no negligence--the guy who walks into a wall or trips over the edge of a rug that thousands of others avoid easily for instance.
But because of the high cost of lawsuits, insurance companies are paying off like slot machines to avoid having one filed.

So for me there is only one way out of the dilemma:

Put some reasonable maximum cap on all lawsuits depending on type, and after that the loser pays their own expenses and those they force the other guy to incur.

(P.S. The 'appropriate for only the stated uses' should be sufficient to absolve any manufacturer from liability for the stupid other things people do with their products. And nobody involved in an illegal act should be entitled to damages if s/he is injured in the commission of that act.)

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Foxfyre wrote:

...
1) How do you determine 'actual damages' when it is the loss of a life or a limb or a bodily function due to the negligence or carelessness of another? This is and has always been the unquantifiable element of these kinds of suits. Thus limiting a tort award to any multiple of 'actual damages' is meaningless when there is no way to quantify the 'actual damages'.
...

I need your help understanding the why of this.

Perhaps the only practical limit to the damage done by excessive tort awards is to terminate so-called class action suits, and/or terminate making tort awards vary with the wealth of the damager(s).

But because I have zero experience with tort law, I'll follow the maxim "fools rush in where angels fear to tread." Therefore I recommend the following for calculation of what actual damages consist of:
I. Cost of the loss of the services of the person or the use of the property.
II. Cost of repair or replacement of persons and/or property;
III. Estimated loss of income from the person and/or property over the expected life of the person and/or over the depreciable life of the property;

Say a mother is killed by a careless person. Then damages woul be:
1. The estimated value of the mother's lost expertise over her expected lifetime (e.g., the value of her TLC).
2. The cost of a replacement or replacements to do what the mother did and would have continued to do had she not been killed, and instead lived her expected (actuarial) lifetime;
3. The loss of projected income from the mother over her expected lifetime;
4. The cost of medical aid and/or treatment attempting to rescue the mother;
5. The cost of the funeral expenses for the mother;

Either the formulas for the calculation of 1 thru 5 can be set by law and calculated by a judge or jury, or the specification of these formulas for each category and their calculation can be left to a judge or jury to decide using their own criteria.

The total award would then be no greater than the sum of the awards for damages, pain and suffering, punitive damages and legal fees, where each of the maximum awards for pain and suffering, punitive damages, and legal fees would be limited to not exceed the award for damages.

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Wow, Ican, I think we need Tico or other legal expertise on this one. My gut tells me you can't quantify the value of a person's life though I know it happens in lawsuits. For instance an infant is worth less than a teenager; a 40-year-old bread winner is worth more than an 80-year-old. But there are so many variables. Is the negligent death of a mother limited to just dollars and cents or do you factor in the pain and suffering of children growing up without a mother, the children she and her husband had hoped for and will now never have, etc.

And if it was unintentional negligence, wouldn't that need to be factored against intentional negligence?

Maybe we'll have a friendly attorney chime in here.

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Foxfyre wrote:

Wow, Ican, I think we need Tico or other legal expertise on this one. My gut tells me you can't quantify the value of a person's life though I know it happens in lawsuits. For instance an infant is worth less than a teenager; a 40-year-old bread winner is worth more than an 80-year-old. But there are so many variables. Is the negligent death of a mother limited to just dollars and cents or do you factor in the pain and suffering of children growing up without a mother, the children she and her husband had hoped for and will now never have, etc.

And if it was unintentional negligence, wouldn't that need to be factored against intentional negligence?

Maybe we'll have a friendly attorney chime in here.

Well, I'm not a PI attorney, but as Ican said, you need a fact finder to make the determination of the value of the wrongful death lawsuit. And that's the crux of it. You can't set a one-size-fits all formula and have it be equitable in all cases.

Pain and suffering damages are real, variable, and compensable. If a victim is injured in an accident and will walk with pain for the rest of his life, he has been damaged, and ought to receive compensation for the pain-free life he'll never have again. Artificially limiting it based on some formula does not seem fair to the victims.

And punitive damages are designed to punish the defendant's willful conduct, and discourage future conduct, so limiting it to the amount of actual damages would hardly do that in many cases. The proper value of punitives is an amount of money that makes the defendant say, "ouch."

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Remember the pinto? All the people that were dying horrible fiery death when their gas tanks exploded?

Ford was well aware of the problems with that car but produced them anyway because its internal "cost-benefit analysis," placed a dollar value on human life.

The reason I bring this up is I'm trying to recall if, as Tico said, "The proper value of punitives made them say "ouch"

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How much is enough ouch?

Is enough ouch that which discourages the perpetrator from doing it again?

Or, is enough ouch that which terminates the perpetrators ability to perpetrate anything ever again?

Our current tort laws have led to a great many businesses being shutdown and their employees left to join the unemployed.

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I'm conflicted on this one. I believe anybody who intentionally designs or conceals a product to be dangerous should experience an 'ouch' evem of such body has to go out of business.

On the other hand is it always the fault of the manufacturer if the product is perfectly safe in normal use, but bad things happen when somebody else misuses the product in ways that were never intended? In other words is the the auto makers primary responsibility to design a product that won't catch fire when rearended, or is it the primary responsibility of other drivers not to hit somebody, especially somebody who might explode? I know that sounds simplistic and maybe crass, but hopefully you'll get my drift.

I personally don't want my car to explode if I'm rearended of course, and if that risk can be lessened, then I'll pay to have it lessened.

But then again I don't want to pay a whole lot more for a product that has all kinds of extra protections in the event that it might be misued when I have no intention of misusing it.

I think any really practical tort reform has to include these variables.

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Foxfyre, first, I agree that it is not ever the fault of the manufacturer if the product is perfectly safe when used as intended, but causes damages when not used as intended. Second, when dangers are not well known or are not readily apparent, but the product manufacturer warns of the dangers when a product is ingested, opened, closed, held, hit, shaken, dropped, thrown, bent, twisted, heated, cooled, packaged, elevated, buried, or submerged, it is also not ever the fault of the manufacturer. Third, I think that when dangers are well known or are readily apparent, what happens when any of these things occurs, it is also not ever the fault of the manufacturer.

For example, one placing a cup of hot coffee between one's legs, spilling it there, and thereby scalding one's thighs, is not the fault of the maker of that coffee. Rolling Eyes

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