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Wednesday, February 21, 2007

Punitives and Policy-think

Put to one side your views about whether the Philip Morris v. Williams majority misrepresents precedent or takes another misguided step into the land of substantive due process.  Instead, I think it is worth asking whether Breyer's distinction between (1) allowing a jury to consider the potential harm to other parties as probative of reprehensibility and (2) allowing a jury to consider actual harm to others directly makes any sense.  Indeed, the very distinction "eludes" the very bright John Paul Stevens.  I think -- from a pure policy perspective -- there is something to recommend Breyer's approach (though my views here are only provisional). 

To be sure, punitive damage awards are meant to punish -- and the distinction Breyer forces onto jury instructions may be more subtle than a jury could realistically follow.  Still, the distinction does not elude me: It is reasonable to believe that the degree of punishment (and magnitude of damages award) that a given action warrants should be tied somehow to how many others the given conduct puts in harm's way; but there remains a difference between awarding a plaintiff punitives for the very fact of a defendant's action harming others and awarding a plaintiff punitives for the reprehensibility of an action that had the potential to cause harm to many others. 

Take Stevens' own example: the murderer who throws a bomb and kills dozens of bystanders -- who we all agree should be punished more severely than the murderer who kills only his intended victim.  Stevens too quickly draws his conclusion from the analogy to the criminal justice system.  Suppose we were considering not punishment by the criminal law but wrongful death civil lawsuits.  There, I don't think the distinction should "elude" Stevens.  Suppose the "intended" victim's family initiates a civil suit in the case where there are dozens of other dead bystanders.  It seems perfectly plausible to imagine that we'd want to limit punitives somehow -- and not enable the first plaintiff to file or the first plainiff to judgment to get the benefit of all of the murder's assets.  Perhaps the best way to accomplish this is never to allow punitives to go directly to the plaintiff and force a state administrator to compensate all victims proportionately.  But assuming a second-best world of punitives paid out to individual plaintiffs, trying to find some instruction to disallow the first plaintiff to collect for all the other harm caused to third parties is reasonable.   This may be why Stevens spends some time in his dissent focusing on the reality that some of the award was going to the State rather than to Williams directly -- to help convince us that Williams isn't getting a huge windfall that is being taken away from other harmed parties, the very fear that animates the majority's newfound test.

Is Breyer's instruction perfect?  Of course not.  It still seems to allow a jury to consider the act of bombing a crowded street to assess reprehensibility.  But it at least minimizes the opportunity for Williams to collect for all dead Oregonian smokers, some of whom may wish to litigate their own claims while there is still money to collect.

One final point:  Breyer's distinction might enable the punitive damage system to avoid some of the effects of luck associated with tortfeasor conduct.  By focusing a jury's inquiry on the potential effects of conduct upon third parties rather than on actual harm caused, the tortfeasor becomes responsible for all its egregiously negligent and reprehensible conduct, not merely the conduct that causes harm.  The gap between conduct and injury is often a matter of luck -- and Breyer's distinction helps juries, in assessing punitives, to focus only on conduct and not whether the conduct itself led to harm.  This could be a good thing, since the tort system all-too-often has no choice but to demand payment from negligent AND unlucky defendants, whose negligence actually led to injury, rather than merely the negligent.  Of course, to some extent, this point undermines my other observation about the desirability of Breyer's distinction because, in practice, it may lead to higher awards than a focus only on actual harm caused.  In any case, both of these thoughts suggests that there is, after all, something to Breyer's distinction.

UPDATE:  Dedalus (in the comments) is right. What I have called "Breyer's distinction" is not really the distinction Stevens is criticizing. Indeed, upon another reading of the opinion, I am no longer convinced that the distinction is attributable to Breyer, for he suggests elsewhere that punitives may be awarded only for potential harm to the plaintiff. That isn't quite what his quote from BMW suggests, but I explicitly wanted to leave precedent out of it. Worse, Breyer does make clear that actual harm seems to be allowed before the jury to assess reprehensibility. So much for that. I guess the distinction eluded me after all!

 

Posted by Ethan Leib on February 21, 2007 at 02:10 PM in Current Affairs | Permalink

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Comments

1. In rejoinder to the foregoing argument, Breyer's interlocutor would say something like: But what about actual - not merely hypothetical or potential - harm done to nonlitigants?

Breyer might respond, which he for the greatest part does, that procedural due process - notice, adversarial hearing, and the like - is offended if in awarding punitive damages to Plaintiff who was harmed by Defendant, one figures in also a measure of the damages done to Nonlitigant by Defendant. Let's accept, arguendo, Breyer's claim. How then does it follow that procedural due process isn't violated in the same way when we consider potential harm done to Nonlitigant as when we figure actual harm done to Nonlitigant? Isn't it just as offensive to Breyer's conception of procedural due process; ifn't moreso, since potential harm is inherently speculative to some extent, metaphysical not physical.


2. The entry said, "But it at least minimizes the opportunity for Williams to collect for all dead Oregonian smokers, some of whom may wish to litigate their own claims while there is still money to collect." While that's true, what happens to the dead Oregonian smokers who can't collect, either because they don't know they could, or otherwise can't? Who speaks for them and make Defendant responsible for that conduct? (For that reason, I feel that Stevens's remark about Oregon's citizenry taking in, instead of it being Plaintiff's windfall).


3. "By focusing a jury's inquiry on the potential effects of conduct upon third parties rather than on actual harm caused, the tortfeasor becomes responsible for all its egregiously negligent and reprehensible conduct, not merely the conduct that causes harm. The gap between conduct and injury is often a matter of luck -- and Breyer's distinction helps juries, in assessing punitives, to focus only on conduct and not whether the conduct itself led to harm."

That's quite queer, though, considering the main thrust of negligence law - breach of a duty of care owed which proximately caused damages - isn't it? For driving down the wrong side of the road at several times the speed limit for no good reason, if I don't hit anything, I'm probably okay so far as tort law goes - I can't be sued for potentially harming the evening rush hour; but were I to hit on a glancing a light-pole, then my potential harm to this evening's rush hour commute suddenly counts? This argument would make more sense if one could sue for potential harm with potential torts, instead of merely actual harm with (actual) torts.

Posted by: cosim | Feb 21, 2007 3:32:17 PM

So Breyer makes a distinction between a jury considering the "actual harm" caused by a tortfeasor's conduct and merely considering the "potential" of harm. That Breyer attempts to make such a distinction - everyone can agree. But what is missing from this distinction is an explanation as to why "actual harm" is not probabitve of the reprehensibility of the tortfeasor's actions (in at least some instances)?

On an unrelated point, your justification for Breyer's formulation (as a means to curb punitive damage awards) out of concern that other tort victims may not be able collect such damages is not particularly compelling. It is always the case that the tortfeasor's assets could be exhausted before all of the victims recover (with or without the availability of punitive damages), for example, a very large compensatory award for non-economic damages might exhaust the tortfeasor's assets without any award of punitive damages.

Posted by: Alex | Feb 21, 2007 3:42:42 PM

Prof. Leib,

I think one reason the distinction doesn't "elude" you may be because the distinction you draw is different than the one Justice Stevens is criticizing. You say the distinction is between "(1) allowing a jury to consider the potential harm to other parties as probative of reprehensibility and (2) allowing a jury to consider actual harm to others directly." But the word "potential" is yours, not the Court's, see slip op at 7, which is the page of the opinion Justice Stevens's comment cross-references. Justice Breyer appears to think that taking *actual* harm to third parties into account in order to assess reprehensibility (and, presumably, thereby to increase punitive damages) is distinct from taking actual harm to third parties into account in order to increase punitive damages "directly." This is sophistry. Your response might be what Justice Breyer's appears to be -- that actual harm may be used as *evidence* of potential harm. But if this is your response, remember that we are operating within the fiction of a jury following its instructions, which in this case means assuming that the jury is not altering the compensatory damages based on actual harm to third parties. In order to say that Justice Breyer's distinction has force, you have to interrogate the reason a jury increases a punitive award based on actual harm to third parties. I am not at all sure that the reason it does so is not because such harm indicates that the defendant's behavior was reckless. If the reason is something other than this, the opinion doesn't do the work it needs to do to flesh it out.

Your point about who should receive the damages is, as far as I can tell, a policy point that is unrelated to whether this false dichotomy makes any sense. If, in a criminal case, the State assessed a fine and that fine went entirely to the victim (let's say, in addition to restitution), we'd have an analogy to punitive damages. Unless the fine was excessive, which isn't at issue here, I don't see how that would be a due process problem and, apparently, neither does Justice Stevens. And if it were a due process problem, it would not cease to be one if it went to the State instead of to the victim. Why is it different in this civil case?

Posted by: Dedalus | Feb 22, 2007 8:10:16 AM

Dedalus is right. What I have called "Breyer's distinction" is not really the distinction Stevens is criticizing. Indeed, upon another reading of the opinion, I am no longer convinced that the distinction is attributable to Breyer, for he suggests elsewhere that punitives may be awarded only for potential harm to the plaintiff. That isn't quite what his quote from BMW suggests, but I explicitly wanted to leave precedent out of it. Worse, Breyer does make clear that actual harm seems to be allowed in to assess reprehensibility. So much for that. I guess the distinction eluded me after all!

That said, I bracketed from the start any challenge about what jurors are competent to do and any effort to worry about what counts as "due process." Hence, "policy-think."

Posted by: Ethan Leib | Feb 22, 2007 12:19:37 PM

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