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Articles by Maurer Faculty

Civil Procedure

Pain & suffering awards (law); empathy; malingering; tort theory

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Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira Jan 2006

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira

Articles by Maurer Faculty

This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a ...