VIVEK GHOSAL, Georgia Institute of Technology - School of Economics, Center for Economic Studies and Ifo Institute for Economic Research (CESifo), Economics Network for Competition and Regulation (ENCORE), German Economic Institute (DIW)
Email: VIVEK.GHOSAL@ECON.GATECH.EDU

The U.S. Department of Justice has prosecuted over 1600 criminal antitrust (price-fixing and related) cases since 1970. Yet we know precious little about the true genesis of these investigations. This paper uses the vector-autoregression methodology to examine the dynamic interrelationships between the various criminal and civil antitrust enforcement variables. A key result is that the number of criminal prosecutions increases in the years immediately following an increase in the number of civil cases, suggesting that merger reviews and other civil investigations may alert the antitrust authorities to criminal antitrust activities. To the best of my knowledge, this is the first econometric analysis that demonstrates the quantitative size of this effect and the time lags in the relationship. Other findings include important dynamic interrelationships between grand jury investigations, the number of individuals and corporations prosecuted, and criminal cases, indicating that information unearthed during a given criminal investigation and prosecution often reveals information about other conspiracies leading to future investigations and prosecutions. Finally, the number of criminal cases prosecuted increases following an economic downturn. We relate this increase to the literature, which points to cartel instability during economic downturns.

ANDREW D.M. MILLER, South Texas College of Law
Email: amiller@stcl.edu

This article, which is a work-in-progress very nearing completion, offers a proposal for improving the jury's measure of noneconomic damages through the use of a mandatory testimony ad damnum. Part I provides a working definition of noneconomic damages and distinguishes them from economic damages. Part II focuses on the two main conceptual difficulties inherent in noneconomic damages-namely, the nontransferability and immeasurability of noneconomic harm. It explains that, although there are no meaningful solutions to these problems, American tort law has nonetheless chosen to tolerate them in light of its longtsantding commitment to compnesating noneconomic harm with money. Part III explains the current process by which noneconomic damages are awarded and describes a system of standardless jury discretion with limited, deferential judicial review. Part IV outlines three of the more practical problems created by the current system-variability, unpredictability, and open-ended liability.

Part V considers the various proposals to change noneconomic damages that have been previously tendered by scholars. Part V.A discusses proposals to abolish noneconomic damages and explains that such proposals, though not entirely without merit, are politically infeasible given the tort system's longstanding commitment noneconomic damages generally. Part V.B discusses the trend over the past three (almost four) decades, which has been to reform noneconomic damages through legislative caps. Caps do nothing more than set an upper-limit beyond which no noneconomic damages award could ever tread. Thus, they are relevant in only the most extreme cases. Caps leave the current system of standardless jury discretion and limited, deferential judicial review virtually untouched for the vast majority of cases. Part V.C discusses alternatives to abolition and caps that would seek to provide some guidance or standards for juries in their difficult task of measuring noneconomic harm and translating it into money damages. It explains that such proposals for better methods of calculation have gone largely unnoticed or discussed by courts, legislatures, and practitioners because the substantive political debate regarding noneconomic damages is-and remains-exclusively focused on legislative caps.

Part VI advances a proposal that would require plaintiffs seeking noneconomic damages in tort to make a testimonial ad damnum. That is, a plaintiff would be required to take the stand during trial and to testify to a sum certain that she subjectively believes would be reasonable compensation for her noneconomic harm. In many ways, this proposal is similar to the current practice followed in many jurisdictions whereby the plaintiff's attorney makes an ad damnum argument during closing statements, but it differs in three important respects. First, the plaintiffs' ad damnum would be mandatory, not permissible. Second, the plaintiff's ad damnum would be testimonial, not argumentative. Third, the plaintiff's recovery would be limited to the amount requested. Jurors would not be bound to give all that is requested, but they would be instructed not to exceed the amount requested.

The first and primary benefit of this proposal is that it would provide case-specific predictability of the noneconomic damages component of a potential award in a given case. Because the plaintiff would be required to disclose the amount of his anticipated ad damnum during discovery, the upper limit of the defendant's potential liability would be established early in the litigation process, and the potential for settlement would increase. The second benefit of this proposal is that it maintains case-specific flexibility. Although the testimonial ad damnum would effectively operate as a cap on the plaintiff's noneconomic damages, it is a cap that would be set and controlled by the plaintiff herself. The plaintiff of course has incentive to ask for as much as she believes the jury would award, but the plaintiff (and her attorney who would undoubtedly advise the plaintiff regarding the amount to request) has equally compelling strategic incentives to avoid overreaching in her ad damnum. The final benefit of this proposal is its simplicity and feasibility. Rather than relying on intricate guidelines, schedules, and/or matrices or on creating new phases in the litigation process, this proposal relies on only slight modifications to existing substantive and procedural rules. Thus, it could be implemented within the courts and through advancement of the common law. It need not wait for legislatures and policymakers.

KATHERINE SANTON, University of San Diego School of Law

In The Worth of a Human Life, I aim to make three contributions. First, I argue that the current wrongful death law in a majority of states regarding how juries measure loss of society wrongful death damages creates an unjust and counterproductive system difficult for litigants to negotiate and confusing for jurors to understand. In particular, no practical rule exists that would ensure similar damage awards in like cases. Rather, the current system facilitates a wide variety of damage awards in cases with similar facts, a problem currently under a great deal of debate. In the article, I use California's wrongful death system as a proxy for my arguments about the wrongful death laws in a majority of states. The laws' likely practical effects have been largely ignored by the literature, which has focused almost exclusively on what types of wrongful death damages should be awarded based on policy rationales rather than the practical aspects of how to measure wrongful death damages.

Second, I propose that the courts adopt a uniform and nuanced rule that admits all post-death evidence relevant to determining loss of society damages, subject to three exceptions: the collateral source exception, the speculation exception, and the grief and suffering exception. Each of the exceptions evolve from policy considerations that underlie the current wrongful death systems in a majority of states. Courts constantly deal with challenges to wrongful death awards and I hope that my proposal will help the courts reform the current law regarding loss of society damages.

Third, I hope to engage in a broader discussion about tort reform - a hot subject in recent years - and I argue that the benefits of a more individuated tort system that takes subjectivity into account when dealing with litigants outweigh the costs of that system. Furthermore, I argue that an individuated tort system is preferable to a more uniform system that awards fixed-sum damage awards because such a context-specific system achieves optimal deterrence and full compensation in an already context-specific tort system using the most efficient means possible.

SAM HARPER, Epidemiology, Biostatistics & Occupational Health, McGill University
JOHN LYNCH, University of South Australia
Email: john.lynch@unisa.edu.au
SCOTT BURRIS, Temple University - James E. Beasley School of Law
Email: scott.burris@temple.edu
GEORGE DAVEY SMITH, Social Medicine, University of Bristol
Email: george.davey-smith@bristol.ac.uk

Since the early 1980s the black-white gap in life expectancy at birth increased sharply and subsequently declined, but the causes of these changes have not been investigated. The objective of this study was to determine the contribution of specific age groups and causes of death contributing to the changes in the black-white life expectancy gap from 1983-2003. The main outcome measure was the gap in life expectancy at birth between blacks and whites.

The data were drawn from United States vital statistics. We used standard life table techniques to decompose the change in the black-white life expectancy gap by combining absolute changes in age-specific mortality with relative changes in the distribution of causes of death.

Among females the black-white life expectancy gap increased 0.5 years from 1983-1993, primarily due to increased mortality from HIV (0.4 years) and slower declines in heart diseases (0.1 years), which were somewhat offset by relative improvements in stroke (-0.1 years). The gap among males increased by 2 years from 1983-1993, principally because of adverse changes in HIV (1.1 years), homicide (0.5 years) and heart diseases (0.3 years). From 1993 to 2003 the female gap decreased by 1 year, from 5.59 to 4.54. Half of the total narrowing of the gap among females was due to relative mortality improvement among blacks in heart diseases (-0.2 years), homicide (-0.2 years), and unintentional injuries (-0.1 year). The decline in the life expectancy gap was larger among males, declining by 25% from 8.44 to 6.33 years. Nearly all the 2.1-year decline among males was due to relative mortality improvement among blacks at ages 15-49 (-2.0 years). Three causes of death accounted for 71% of the narrowing of the gap among males: homicide (-0.6 years), HIV (-0.6 years), and unintentional injuries (-0.3 years), while lack of improvement in heart diseases at older ages kept the gap from narrowing further.

After widening during the late 1980s, the black-white life expectancy gap has declined because of mortality improvements in homicide, HIV, unintentional injuries, and, among females, heart diseases. Further narrowing of the gap will require concerted efforts in public health and health care to address the major causes of the remaining gap: cardiovascular diseases, homicide, HIV, and infant mortality.

JOSEPH E. ALDY, Resources for the Future
Email: aldy@rff.org
W. KIP VISCUSI, Vanderbilt University - Law School, National Bureau of Economic Research (NBER), Vanderbilt University - Department of Economics, Vanderbilt University - Owen Graduate School of Management
Email: kip.viscusi@Vanderbilt.Edu

Revealed preference evidence, especially based on wage-risk tradeoffs in the labor market, provides the primary empirical basis for analyses of the value of statistical life (VSL). This market evidence also provides guidance on how VSL varies with age. While labor market studies have generated conflicting evidence some showing that VSL rises with age and others showing that VSL declines with age more refined estimates that take into account the age variation in job fatality risks or life-cycle patterns of consumption show an inverted U relation between the VSL and age. The value of a statistical life-year shows a similar pattern and is not time-invariant. Applying estimates of the VSL-age relationship to an analysis of the Clear Skies initiative illustrates the implications of recognizing the age-VSL relationship.

JAMES K. HAMMITT, affiliation not provided to SSRN

This paper provides theoretical background for a symposium on whether the monetary value of changes in mortality risk resulting from environmental policy is best summarized in terms of a value per statistical life (VSL) or value per statistical life-year (VSLY). The relationship between VSL and VSLY may be clarified by recognizing that any change in an individual's mortality risk can be described by a corresponding shift in her survival curve, which can be summarized by the expected number of lives saved (as a function of time or within a specified time period) or by the expected number of life-years saved. An individual's willingness to pay (WTP) for a shift in her survival curve can be summarized by her average VSL or VSLY for that change. Economic theory suggests that both VSL and VSLY may depend on the individual's initial survival curve, characteristics of the shift, and individual characteristics such as health and income. Neither VSL nor VSLY is likely to be constant across changes in mortality risk. Hence, accurate valuation requires the use of scenario-specific values. The choice between VSL and VSLY summary measures is largely one of convenience.