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Tuesday, March 25, 2008

Speaking of punitive damages...

Yes, I know I've lately been a bit of a one-track retributive damages "promoter" -- the word "pimp" seems more appropriate but the last time one of us used it, well, that's another story -- but I just noticed that Adam Liptak's got a new article in the Times about the "American Exception" of punitive damages. Adam writes:

Most of the rest of the world views the idea of punitive damages with alarm. As [an] Italian court explained, private lawsuits brought by injured people should have only one goal — compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators.

Some common-law countries do allow punitive damages, though in limited circumstances and modest amounts. In the United States, by contrast, enormous punitive awards are relatively common, although they are often reduced or eliminated on appeal. Last month, for instance, the United States Supreme Court heard arguments in the Exxon Valdez case, where a jury’s initial award of $5 billion was later reduced to $2.5 billion. Still, such awards terrify foreign courts.

As I read Adam's piece, I couldn't help but think that if more American jurisdictions adopted my proposal of casting punitive damages as an intermediate sanction, there'd be far fewer problems in getting these judgments enforced against foreign defendants, not to mention there'd be much less risk of being found at odds with the Court's substantive and procedural due process analysis of punitive damages. At the very least, I hope the constitutional analysis at the end of my piece will prove somewhat useful to courts both here and abroad that are contemplating the problematic relationship between punitive damages and compensatory damages. (More on that in this coming Friday's post.)

Posted by Dan Markel on March 25, 2008 at 11:40 PM in Article Spotlight, Dan Markel, Retributive Damages, Torts | Permalink

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