Interesting Article on Punitive Damages
Professor Anthony Sebok from the Brooklyn Law School has written an interesting paper on punitive damages.
Here is his abstract of the article:
In this article I argue that the current problem with punitive damages in the United States is not, as is popularly believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis - courts now lack an adequate theory to explain to themselves, lawyers, and litigants the purpose of punitive damages. The argument contains the following steps. First, I illustrate that the dominant rationale in recent years for punitive damages has been efficient deterrence. Second, I argue that the current practice of punitive damages is ill-suited to the achievement of efficient deterrence, which explains why it has been so easy for critics of the tort system to characterize punitive damages as a failed branch of civil litigation. Third, I argue that the remaining significant non-deterrence theories of punitive damages (including the theory developed by the United States Supreme Court in a series of recent decisions) fail to provide an adequate theory of punitive damages. Fourth, I argue that the point of punitive damages can be understood as a form of private retribution, and I use the history of punitive damages in England and the United States as well as the work of the philosopher Jean Hampton to illustrate my point. Fifth, I argue that the theory of punitive damages as "private retribution" - which sounds odd to the modern ear - fits surprisingly well with modern theories of the tort system which view tort law as a system of civil recourse for citizens who have suffered wrongs in private law.
Download the article here.
Thanks again to Professor Childs for telling me about this paper.
Now, off for two days of depositions ....
This is interesting.
It occurs to me that one might be able to make the argument in court that we allow punitive damages to deter "private retribution" outside of the legal system. The legal system needs to discourage Plaintiffs from taking an AK47 into the corporate offices of the Defendant but yet must ensure that the Defendant is deterred from its egregious conduct. Therefore punitive damages are permitted to allow the Plaintiffs who are wronged to have their "private retribution" in Court.
That way you discretely tie the private retribution argument to the punishment argument.