Valuing Black and Female Lives: A Proposal for Incorporating Agency VSL into Tort Damages

Abstract

Incorporating a uniform VSL would ameliorate the hitherto unaddressed and unjustified race and gender bias in tort awards. The substitution of a uniform VSL for race- and gender-based statistics addresses the racialized and gendered deterrence gap that has led to skewed incentives for actors to take precautions against harms to blacks and women. Moreover, with regard to the inevitable underdeterrence/overinsurance tradeoff that arises in formulating wrongful death damages, the “cost” of the overinsurance/overcompensation can be viewed as the “price” paid in order to provide equitable treatment across demographic groups, to ensure that defendants respect the same uniform duty of care for all plaintiffs, and to eradicate the perverse incentives for adverse risk allocation.

Keywords: value of statistical life; race; gender; damages; deterrence

JEL Classification: K13; K23