an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In a recent article in the Washington Post about whether the U.S. should pay ransom, in the context of the savage killing of James Foley, Adam Taylor writes, "It wasn't about figures. $100 million is a lot of money, but a life is priceless." I must say that my first thought when I read this was that the central lesson of my first-year torts course at Stanford almost 45 years ago--which I consider the best course I've ever had, on any subject, anywhere (taught by Marc Franklin)--brought home the point that this statement is simply and utterly wrong. The legal system prices human lives all the time; that is, among other things, what insurance policies are about, and, of course, the essence of tort law is to monetize the costs of what from a social perspective are completely foreseeable accidents. We know, when we decide to build skyscrapers or major bridges, etc., that people are going to die. Ditto, incidentally, with regard to raising speed limits on automobiles or continuing to allow the sale of alcohol in bars, etc., etc. To be sure, we don't know exactly who is going to die, and that makes all the difference, just as Barack Obama doesn't know exactly whom he is sentencing to death when deploying troops or allowing the use of drones that will generate "collateral damage." For many, that non-specificity makes all the difference. Once we are presented with the picture of Mr. Foley, whose life could have been saved by the payment of a ransom, he becomes the "child in the well," where society spends an excess of funds to rescue the tot instead of spending the same money more wisely to save many more "statistical lives' unattached to particular faces. And, of course, the difference between Mr. Foley and the child in the well is that we don't believe that rescuing the child will in fact create incentives for further children to fall down wells, whereas payment of ransom to thugs in fact does generate extremely bad incentives. There is absolutely no excuse for what was done to Mr. Foley, but perhaps we have to treat war journalilsts the way we treat soldiers: i.e., they voluntarily enlisted in a very dangerous occupation, for a mixture of reasons, including patriotism and devotion to the public weal, but part of the deal is that their lives will be on the line, to be protected only at "acceptable" cost.
Brett's pretty syllogism only works if it is feasible to ban all ransoms. (Society and the kidnapped victims have to stick out the deaths and mutilations until the kidnappers learn you mean it.) In fact you cannot stop ransoms as private deals with families and employers. Thought experiment: the kidnapper of your child demands a ransom of $100 or else. Who would not pay?
Your analysis doesn't go far enough. In the USSA placing value on a human life is entirely messed up and irrational.
Once you're dead, whether in a Twin Towers disaster or a beheading, what your life was worth, according to the gummint, depends on how much you might have earned in the future, how much you've complicated your life with wives and children, and so on. This policy is, above all, insulting to the single and childfree.
And when a soldier is killed, what the gummint pays depends on how many dependents he had. This is as dumb a policy as ransoming hostages, since it encourages soldiers to marry and breed upon entering service, which only increases the costs to society if he should be killed.
I meant that the value of a life insurance policy doe snot set a value on life in the way that Professor Levinson seems to suggest.
My decision to buy, say, a $1 million policy does not mean I value my life at $1 million. It means that, given my ability to pay the premiums, and my estimate of my dependents' needs should I die during the policy term, and the other resources they would have available, etc., I chose to buy a $1 million policy.
It's not an exact translation, sure, but insurance very well in some sense puts value on body parts and lives in various respects. There are, e.g., standard rates for such and such period of years, amounts you might earn etc.
Each person's life is not simply priceless and not able to translated into money. It's not the same thing, to be clear, but the same thing is true in regard to damages (though can be a subject of insurance too).
My claim was limited to saying insurance was not a measure. I did not mean to suggest that it was not necessary, even sensible, to place value on life in many contexts.
Even in the cases where policies put specific values on loss of limb and the like, those values may be affected by the premium the insured is willing to pay.
In any case, it seemed to me that Prof. Levinson was saying that life insurance policies give us a sense of the value of life. But that is just not true. Two individuals whose age, health, life expectancies, and earning prospects are identical may sensibly choose much different sized policies.
NYT's website has an interesting video on US vs. European handling of kidnapping as well the differences among the latter (apparently Al Qaeda is a safer bet, relatively speaking).
I get what you are saying, t., I believe, but even in respect to a person choosing to get a certain amount, they are putting a certain value on life. And, as I noted, there are also some general insurance principles that apply, sort of "going rates," that matches Levinson's reference to at least some degree.