[Congressional Record Volume 162, Number 172 (Thursday, December 1, 2016)]
[Senate]
[Pages S6666-S6667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. BROWN (for himself, Mr. Leahy, Mr. Franken, Mr. Durbin, 
        Mr. Tester, Mrs. Murray, Mr. Merkley, Ms. Warren, Ms. Hirono, 
        Mr. Casey, Mr. Warner, Mr. Menendez, Mr. Blumenthal, Ms. 
        Heitkamp, and Mr. Reed):
  S. 3491. A bill to amend the Truth in Lending Act and the Electronic 
Fund Transfer Act to provide justice to victims of fraud; to the 
Committee on Banking, Housing, and Urban Affairs.
  Mr. BOOKER. Mr. President, I rise to introduce the Fair Calculations 
in Civil Damages Act of 2016, also known as the Fair Calculations Act. 
This critical civil rights legislation would ensure that Federal 
judicial awards of civil damages do not value women and minorities less 
than other Americans. By combating discrimination in the award of civil 
damages, the Fair Calculations Act would help bring our nation one step 
closer to fulfilling the promise of equal justice under law. I thank 
Senator Gillibrand for her support, and I am proud she is an original 
cosponsor of this bill. I also thank Rep. Kennedy, who is introducing 
the House companion to this bill, for his leadership.
  A basic tenet of the American legal system is our shared belief that 
``all men are created equal,'' an idea so critical to who we are and 
what we believe that it is explicitly reflected in our Declaration of 
Independence. Even our national charter reflects the idea that everyone 
must be given equal protection under the laws. Out of this 
constitutional foundation lays a simple truth: to be equal under the 
law means, at a minimum, that neither our government nor the rule of 
the law should discriminate against anyone by virtue of his or her 
membership in a group.
  Sadly, our Nation fails to live up to those promises when courts 
award damages in civil cases. Far too often, Federal and State judges 
use race or gender as factors to weigh when deciding how much money to 
award a plaintiff in a civil case. As a result, individuals of a 
certain race or gender often receive larger awards than people of a 
different race or gender, even in similar cases. This damages awards 
gap derives from estimates of how much money an individual would have 
earned over their lifetimes had they not been injured and, far too 
often, that estimate considers earnings and job levels by race and 
gender.
  Consider the case of James McMillan, an African-American man who was 
injured during the 2003 Staten Island ferry crash. As a result of the 
crash, Mr. McMillan suffered a severe spinal cord injury that caused 
him to need medical care for the remainder of his life. He sued the 
City of New York. In response to his suit, the City of New York argued 
that he should receive less money for his injury because data 
demonstrated that African-American victims of spinal cord injuries 
lived fewer years than white victims and, therefore, he would incur 
fewer medical costs. Fortunately, the judge in that case rejected the 
city's argument. But no American should have to endure the indignity of 
having the value of their life determined by their race or gender.
  The use of race and gender to project future earnings in courts is a 
widespread problem. According to a 2009 survey by the National 
Association of Forensic Economics, 44 percent of forensic economists 
reported considering race and 92 percent reported considering gender 
when estimating future earning rates for injured children.
  Even leading scholars have been critical of this practice. Martha 
Chamallas, a law professor at the Ohio State University Law School, 
called the practice reminiscent of something ``civil rights advocates 
[fought] in the 1960s.'' Jennifer Wiggins, a law professor at the 
University of Maine Law School, has emphasized that the practice 
``reinforces past discrimination and pushes it out into the future and 
endorses.'' I could not agree more.
  The Fair Calculations Act, which I introduce today, would bar Federal 
courts from awarding damages based on race, ethnicity, gender, 
religion, or actual or perceived sexual orientation. Justice in an 
American court should not turn on race or gender, and the time has come 
to put an end to this discriminatory practice in Federal courts. I also 
believe this bill would serve as a road map for States who I hope will 
end this discriminatory practice in their courts.
  The legislation would require the Department of Justice and the 
Department of Labor to develop guidance to the States on how 
calculations of future earnings for a violation of State tort law could 
violate Federal equal protection laws. That is yet another example of 
how this bill aims to persuade states to follow our lead. By issuing 
guidance to the states on this issue, the impact of this bill has the 
potential to be even more far-reaching.
  The bill would require the Department of Labor to issue guidance to 
forensic economists on how to create inclusive future earnings tables 
that do not rely on race, ethnicity, gender, religion, or actual or 
perceived sexual orientation. Forensic economists are often used as 
experts in both Federal and State courts to advise lawyers and judges 
on the proper amounts to award for damages. Instructing these experts 
on the benefits of more representative future earnings tables and the 
legal hurdles of using less inclusive earning tables is yet another way 
to ensure that future earnings in State courts do not harm women or 
minorities.
  Finally, the Fair Calculations Act would direct the Judicial 
Conference of the United States to conduct a study and report to 
Congress on the use of race, ethnicity, gender, age, disability, or 
actual or perceived sexual orientation in the calculation of future 
earnings in civil court cases. This provision

[[Page S6667]]

provides for more transparency and record keeping. The first step to 
fixing a problem is understanding the extent of the problem you have, 
and this provision allows for Congress to track the extent of Federal 
judicial awards based on demographics. It also allows for more open 
government, which is important because transparency allows the American 
people to hold its government accountable.
  Our Nation was founded on the idea that all people are created equal. 
Valuing one person's life more than another merely because of the color 
of their skin or sex belies this core value that makes our Nation 
great. The Fair Calculations Act would remedy this wrong and continue 
our country down the path towards fulfilling our Nation's promise of 
liberty and justice for all. I am proud to stand here today and 
introduce this critical bill and I urge its speedy passage.

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