12 Stupid Men

Supporters of Amendment A, a South Dakota ballot initiative that would explicitly empower juries to judge the law as well as the facts in criminal cases, have faith in the common sense of your average Joe. As much as I like the idea of solid citizens who refuse to convict marijuana growers or unlicensed midwives, I sometimes think this faith may be misplaced.

I have my doubts, for instance, when I read that a Detroit jury has told DaimlerChrysler to pay an employee $21 million because of her co-workers' boorish behavior. I worry even more after I learn that a Los Angeles jury has awarded a smoker with lung cancer $28 billion in a lawsuit against Philip Morris.

To be fair, outlandish verdicts like these cannot be blamed entirely on stupid jurors. The government plays a crucial role in encouraging such idiocy.

In the Detroit case, it wasn't the jurors who came up with the idea that dirty jokes, crude insults, and pornography constituted sexual harassment, an offense for which the malefactors' employer could be held financially responsible. That concept was a collaborative effort involving the legislators who banned employment discrimination based on sex, the legal theorists who pushed a broad definition of it, and the judges who bought their arguments.

Likewise, the idea that smokers could recover damages for the consequences of their own risky behavior is so absurd that until recently even juries rejected it. But after state governments sued the tobacco companies, villifying them as murderous tricksters and obtaining settlements worth many billions of dollars, smokers' claims started to seem plausible.

As for the size of the awards, most of the money in the sexual harassment case—$20 million—was for "pain and suffering," an imponderable that invites arbitrary outcomes. The plaintiff's lawyer had asked for $140 million, so the jurors probably thought they were being conservative, even though the amount they settled on was 70 times the largest sexual harassment award in Michigan's history.

Juries increasingly seem to be using pain and suffering awards to clobber big companies in cases where punitive damages are limited or unavailable. The jury in the California tobacco case did not have to resort to such subterfuge. It awarded the plaintiff only $100,000 for pain and suffering (lung cancer, apparently, pales in comparison to a picture of a penis taped to your toolbox), plus $750,000 for economic damages. The balance—$28 billion, 33,000 times the compensatory damages—was explicitly to punish Philip Morris for tricking people into smoking.

Pain and suffering may be difficult to calculate, but at least the exercise has something to do with compensation, the ostensible focus of the civil justice system. Punitive damages, by contrast, are an oxymoron unconnected to the harm claimed by the plaintiff, who nevertheless gets to keep the money. With no standards to guide them, juries pluck numbers out of thin air to express their outrage.

In short, it's not surprising that the system generates eye-popping, head-shaking results. Especially when jurors are such idiots.