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I. INTRODUCTION
Seventeen volumes and seventeen years ago, the editors of the Northwestern University Law Review made a wise decision. They accepted for publication an article-Valuing Life and Limb in Tort: Scheduling Painand-Suffering-which has become one of the most important pieces concerning pain-and-suffering damages in the legal literature.1 Like many great works, this paper was a joint effort of multiple scholars: Randall Bovbjerg, from the Urban Institute in Washington, D.C.; Frank Sloan, an economics professor at Vanderbilt University; and James Blumstein, a law professor, also at Vanderbilt. In their paper, Bovbjerg, Sloan, and Blumstein (hereinafter "BSB") took upon themselves a daunting task: analyzing various ways to put a price on the unpriceable, a person's pain and suffering.
Nothing much has changed since BSB's seminal paper. Pain-andsuffering awards seem to continue to make up approximately fifty percent of total awards, at least in some areas of personal injury cases.2 Juries, judges, lawyers, lawmakers, and academics still struggle with the same dilemma BSB tackled: what is the best way to adequately compensate tort victims for the noneconomic harms they incur? In many ways, BSB's paper is as relevant today as it was seventeen volumes ago.
In what follows I attempt to explain some of BSB's suggestions for pricing pain and suffering. I will also explore a number of other proposals that have since been introduced. The theoretical approach I adopt in this Essay to the pricing of pain and suffering is the approach BSB adopted in their paper, which is to analyze it from a law and economics standpoint, which also incorporates a limited notion of global fairness.3
From a law and economics perspective, the threshold question of the appropriateness or desirability of pain-and-suffering damages is not yet settled. A rule of thumb for conceptualizing the problem within the framework of law and economics is to ask whether awarding pain-and-suffering damages contributes to the two objectives of tort law: adequate incentives for potential tortfeasors to exercise due care (the "deterrence" rationale); and the efficient spreading of victims' losses to a larger pool (the "insurance" rationale). Scholars who support pain-and-suffering damages argue that, from an optimal deterrence perspective, defendants should bear the full social cost of their conduct, which includes pain-and-suffering costs.4 According to this view, pain-and-suffering...