CAN I SUE BECAUSE I FEAR I MIGHT VOMIT? In a bizarre case today, the US Supreme Court ruled that litigants can collect damages based on fear of increased vulnerability to a disease that they don’t have and may never get. The 5-4 majority on the main issue in the case was comprised of odd bedfellows: Ginsberg, Stevens, Scalia, Souter, and Thomas with Chief Justice Rehnquist, O’Connor, Kennedy and Breyer in dissent. The issue was one of statutory–rather than Constitutional–interpretation. As UCLA law prof Eugene Volokh hints, Scalia and Thomas often break ranks with their conservative brethren on these types of cases, owing to their extreme deference to the powers of the legislative branch.

Volokh provides an interesting excerpt from Justice Breyer’s dissent (which I have yet to read in full):

How is the jury, without speculation, to measure compensation for the augmentation of a cancer fear from, say, two in nine to one in three? Given the fact that most of us lead our lives without compensation for fear of a 22% risk of cancer death, what monetary value can one attach to an incrementally increased fear due to a risk, say, of 30%? The problem here is not the unreality or lack of seriousness of the fear. It may be all too real. The problem is the impossibility of knowing an appropriate compensation for asbestosis insofar as its appearance tears away that veil of disregard that ordinarily shelters most of us from fear of cancer, if not fear of death itself.

No joke.

For the adventurous (or bored), the full opinion: NORFOLK & WESTERN RAILWAY V. AYERS.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.