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Pain and Suffering Awards: They Shouldn't Be (Just) about Pain and Suffering


  • Peter A. Ubel
  • George Loewenstein


In this paper, we challenge the conventional view that pain-and-suffering awards should be interpreted literally as a compensation for feelings of pain and suffering. People adapt to conditions as serious as paraplegia and blindness, returning rapidly to near-normal levels of happiness, which means that pain-and-suffering awards based literally on pain and suffering would be small. We argue that compensation for these types of conditions should be larger than would be dictated by pain and suffering alone because people legitimately care about more than just the pain and suffering that results from an injury; they also care about a variety of other factors, such as their capabilities to perform various functions, that often do not affect happiness. We propose the outlines of a method for determining noneconomic damages that divides the problem into three judgments, each to be made by the constituency most competent to make it. (c) 2008 by The University of Chicago. All rights reserved.

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  • Peter A. Ubel & George Loewenstein, 2008. "Pain and Suffering Awards: They Shouldn't Be (Just) about Pain and Suffering," The Journal of Legal Studies, University of Chicago Press, vol. 37(S2), pages 195-216, June.
  • Handle: RePEc:ucp:jlstud:v:37:y:2008:i:s2:p:s195-s216

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    References listed on IDEAS

    1. David G. Blanchflower & Andrew J. Oswald, 2004. "Money, Sex and Happiness: An Empirical Study," Scandinavian Journal of Economics, Wiley Blackwell, vol. 106(3), pages 393-415, October.
    2. W. Kip Viscusi & Patricia H. Born, 2005. "Damages Caps, Insurability, and the Performance of Medical Malpractice Insurance," Journal of Risk & Insurance, The American Risk and Insurance Association, vol. 72(1), pages 23-43.
    3. Pogarsky, Greg & Babcock, Linda, 2001. "Damage Caps, Motivated Anchoring, and Bargaining Impasse," The Journal of Legal Studies, University of Chicago Press, vol. 30(1), pages 143-159, January.
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    Cited by:

    1. Matthew Adler & Eric A. Posner, 2008. "Happiness Research and Cost-Benefit Analysis," The Journal of Legal Studies, University of Chicago Press, vol. 37(S2), pages 253-292, June.
    2. Sunstein, Cass R., 2013. "The value of a statistical life: some clarifications and puzzles," Journal of Benefit-Cost Analysis, Cambridge University Press, vol. 4(02), pages 237-261, August.
    3. Cass R. Sunstein, 2008. "Illusory Losses," The Journal of Legal Studies, University of Chicago Press, vol. 37(S2), pages 157-194, June.
    4. Sofia Amaral-Garcia, 2015. "Non-economic Damages in Medical Malpractice Appeals: Does the Jurisdiction Make a Difference?," Discussion Papers of DIW Berlin 1506, DIW Berlin, German Institute for Economic Research.
    5. Johnston, David W. & Shields, Michael A. & Suziedelyte, Agne, 2015. "Victimisation, Wellbeing and Compensation: Using Panel Data to Estimate the Costs of Violent Crime," IZA Discussion Papers 9311, Institute for the Study of Labor (IZA).

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