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Thursday, March 20, 2008

Retributive Damages: Some Recent Normative Scholarship

Earlier posts on the topic of Retributive Damages can be found here. The whole article can be found here.

Recent Normative Scholarship


Unsurprisingly, the complexity, significance, and rapidly evolving nature of punitive damages law has attracted the attention of many scholars. Some legal economists, like Professors Polinsky and Shavell, think extra-compensatory damages should focus on advancing the goal of cost-internalization. As I explained earlier, under this economic framework, a defendant’s culpability or state of mind is immaterial to her obligation to pay for the harms that she causes.[1] Instead, what matters is whether there was any likelihood the defendant would evade paying compensation for the harms she caused. If there is such a possibility, then the amount of punitive damages should be calibrated to the likelihood of her evading compensation.[2] This particular economic approach, however, is clearly at odds with the existing doctrine, which, as we saw in the previous Section, generally requires there to be some finding of malice or recklessness before punitive damages can be awarded.

As a matter of policy prescription, the economic approach’s inconsistency with extant doctrine is obviously not a knock against it. Generally speaking, individuals and entities should have to pay for the mess they make; if they can exploit enforcement gaps by private and public parties, there will be an incentive to take insufficient care, which will also run the risk of under-deterrence.[3] But the cost-internalization approach, which is conceptually unconcerned with mens rea or culpability, is better thought of as pursuing “augmented” damages, rather than “punitive” damages.[4] This allows us to contrast augmented damages from other extra-compensatory damages.

Other scholars have provided an alternative to the cost-internalization rationale for punitive damages by instead discussing punitive damages awards in terms of how they vindicate a victim’s dignity and autonomy interests, which have been injured by the defendant’s misconduct.[5] In some common law jurisdictions, these extra-compensatory damages are more precisely labeled as “aggravated” damages—and they would go to plaintiffs for the injury to their dignity.[6] Some supporters of these non-economic accounts have defended large parts of extant common law punitive damages law on the grounds that these practices serve as vehicles by which victims or their allies can take measures to persuade juries to avenge the victim’s interests through ad hoc, and therefore unpredictable, awards of money damages to victims.[7] Indeed, for some social justice tort theorists, common law jury-driven punitive damages practice serves as a way for an ordinary person to fight malfeasant entities and their lobbyists seeking business-friendly “tort reform.”[8] Some scholars, such as Galanter and Luban, drawing on the work of Jean Hampton’s victim-vindication justification for punishment, even view themselves as committed to the goals or values of retributive justice.

But as shown in the insightful interpretive accounts of tort law and punitive damages by Benjamin Zipursky and Anthony Sebok,[9] the tort system conventionally empowers victims to either pursue punitive damages or forbear from pursuing such damages. That’s important because it shows that no one forces punitive damages on the victim in the common law approach; rather leaving the decision to seek recourse to the victim is said to vindicate the victim’s autonomy. The same may be said for allowing victims to have almost unfettered control over settlements with the defendants.

These two practices reveal some space between victim-vindication accounts and the interests underlying a retributivist account. Retributivists, as I will explain shortly, give more weight to the reduction of both Type I false positive errors — in which people are mistakenly punished (or excessively punished relative to comparable offenders) — and Type II false negative errors — in which wrongdoers escape their punishment altogether (or receive too lenient a punishment compared to other similar offenders in the jurisdiction). Importantly, the accounts defending punitive damages as vehicles for victim-vindication or jury expressions of outrage say little about the need for building a system that tries to reduce both Type I and II errors. Indeed, to the extent these accounts are interested in invoking retributive justice values to bolster their accounts, this silence is a real weakness.[10] After all, failing to defend procedural safeguards or to create any real guidelines for cabining jury discretion and judicial review is a recipe for Type I error creation. Moreover, giving only victims the right to pursue retributive damages or giving all victim plaintiffs the unfettered authority to settle a case involving allegations of reckless or malicious misconduct writes a blank check for Type II errors.

If we want a retributive scheme of punitive damages, it has to reflect some concern for reducing both types of errors. Of course, a pluralistic scheme of extra-compensatory damages could be designed to provide space for the pursuit of both cost-internalization and victim vindication. These two goals have received generous and shrewd coverage in the scholarly literature,[11] and thus, in this paper, I don’t spend much time analyzing them here. But what’s really missing is a better understanding of what a public retributive justice theory entails for punitive damages. And in the Parts that follow in this Article, I shall focus on the achievement of retributive justice through the context of “retributive damages.” For that to happen, we must first have an account of retributive justice. To that task I now turn.


[1] See supra note 4.



[3] See Thomas C. Galligan, Jr., The Risks of and Reactions to Underdeterrence in Torts, 70 Mo. L. Rev. 691 (2005).

[4]See Thomas C. Galligan, Jr., Augmented Awards: The Efficient Evolution of Punitive Damages, 51 La. L. Rev. 3 (1990)

[5] See, e.g., Sebok, supra note 12; Zipursky, supra note 12.

[6] See Bruce Chapman & Michael Trebilcock, Punitive Damages: Divergence In Search of a Rationale, 40 Ala. L. Rev. 741 (1989).

[7] At times, the work of Marc Galanter and David Luban, as well as David Hoffman and Kaimipono Wenger, speak in this register. See sources supra note 12 and 14. For example, Galanter and Luban endorse imposing punitive damages in a single case against a defendant for all the harm the defendant’s misconduct caused in similar situations even if the defendant may have had viable defenses against those other parties. See, e.g., Galanter & Luban, supra note 12, at 1436-38 (providing examples of “expressive defeat” of defendant through punitive damages). They also think judges should extend “great deference” to juries’ determinations because of their special competence in sending “the community’s message through the medium of damages.”


The view I take circumscribes jury decision-making considerably more.

[8] E.g., Michael L. Rustad, The Closing of Punitive Damages’ Iron Cage, 38 Loy. LA L. Rev. 1297, 1301 (2005) (tort reform of punitive damages is “special legislation to help corporate


”); see generally Koenig & Rustad, supra note 16; Richard L. Abel, Questioning the Counter-Majoritarian Thesis: The Case of Torts, 49 DePaul L. Rev. 533 (1999).

[9] See sources supra note 12.

[10] To its credit, Professor Sebok’s state-sanctioned revenge account is consistent with a desire to reduce “piling on” (or Type I over-punishment) errors that occur through introducing evidence apart from that which injured the plaintiff. See Sebok, supra note 12. But he doesn’t address the state’s interest in reducing Type II errors of either sort, or the procedural safeguards necessary to prevent Type I errors of the mistaken punishment sort.

[11] See sources cited supra note 4 (scholars urging punitive damages to pursue cost internalization) and note 12 (scholars urging punitive damages to allow for victim-vindication).

Posted by Dan Markel on March 20, 2008 at 10:22 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel, Retributive Damages, Torts | Permalink


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