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Monday, March 24, 2008

Retributive Damages: The Basic Account of Retributive Justice

In earlier posts gathered here, I laid out the Introduction and some relevant background regarding
punitive damages law and recent scholarship. In today's post after the jump, I share an un-footnoted and unformatted version of the basic sketch of retributive justice that informs the reconstruction of punitive damages I propose in subsequent posts. For those of you somewhat familiar with my account of retributive justice, I recommend looking at section D, below, because it foreshadows the kinds of concerns a retributivist should have about proposing an intermediate sanction of punitive damages for retribution's sake, or what I call "retributive damages," as opposed to damages for the sake of revenge or victim-vindication.

You can read the whole article with apparatus on SSRN here. Feel free to send me your thoughts via email.



This Part focuses attention on the meaning of retributive justice, in particular upon something I call the “confrontational conception of retributivism” (or “CCR” or “confrontational retributivism”). The CCR is designed to show both the internal intelligibility of retributive punishment situated in a liberal democracy and the limits that attach to the pur-suit of that social project of retributive justice. As the notes below reveal, this account builds upon prior accounts of retributive justice; but it also departs from them in various ways. My point here, however, is not to trumpet or explicate these differences or claim originality on the whole account right now. It’s enough if I can simply paint a rough sketch of retributive justice that is sufficiently sympathetic and attractive to warrant thinking about how to restructure punitive damages in light of it.

The late John Rawls once defined retributive justice as a view of punishment based on the idea that “wrongdoing merits punishment. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing … and the severity of the appro-priate punishment depends on the depravity of his act. The state of affairs where a wrong-doer suffers punishment is morally better than the state of affairs where he does not; and it is better irrespective of any of the consequences of punishing him.” As Professor Michael Moore summarized, retributivism is the “view that punishment is justified by the moral culpability of those who receive it.” Underlying this description is a sense that imposing punishment for wrongdoing is a self-evidently attractive obligation.

The problem with this intuitive view is that many people think the nature of this obligation still needs more explication. Imagine Jack. He has spitefully run over his neighbor’s prize-winning dog. If the state seeks to punish Jack on account of his purported moral desert, several questions arise. First, why does Jack deserve punishment? Why shouldn’t Jack undergo some form of “treatment,” where we can cure Jack’s anti-social condition or disease? Skeptics might ask why one should embrace the pursuit of retribu-tive justice qua coercive condemnatory deprivation.

Second, even if one agrees with the claim that Jack deserves to endure some pun-ishment in the form of a coercive condemnatory deprivation, it does not automatically fol-low that the state has a right or a duty to punish Jack. Why is the state involved -- and not the victim or her allies? We need an account that can help us understand what it is about Jack’s past offense that might entail the state’s prima facie right and obligation to punish him. Third, we need to figure out the relative weight of the obligation to achieve retributive justice: is it absolute or weighed against other duties and projects?

The account below tries to situate retributive justice as a socio-legal practice whose value is internally intelligible, that is whose value is realized by the communicative experi-ence that occurs when the state inflicts some level of coercion upon an offender who has been adjudicated through fair and reasonable procedures of violating an extant legal norm. In contrast to the account alluded to by Rawls, whose description neither mentions the state nor limits the scope of wrongdoing to legal offenses, the account I offer is essentially a le-gal or institutional view of retributive punishment.


A. The Animating Principles of Retributive Justice


Though there is a rich philosophical literature about the nature of moral desert and its relationship to punishment, my sense is that we need to look elsewhere to understand why punishment against legal wrongdoers is justified in liberal democracies. Someone who is industrious, wise and kind may deserve plaudits, after all, but liberals (among oth-ers) tend not to believe that it is the state’s responsibility to bestow those plaudits as a mat-ter of social programming. Conversely, one might be miserly, greedy, and indolent, but one’s viciousness is generally not understood to be a compelling reason for the state to condemn a person through punishment. So a person’s moral desert, whether negative or positive, is generally and alone insufficient to motivate state action in a liberal democracy.

The CCR, by contrast, explains the attraction of retributive punishment in refer-ence to three other principles that have broader acceptance as specifically, though not nec-essarily only, political ideals: first, responsibility for choices of unlawful actions; second, equal liberty under law; and third, democratic self-defense. On this view, and subject to the constraints of culpability and context, retributive punishment effectuates these ideals that are widely understood and that can be embraced ex ante by citizens of complex liberal democracies such as ours. So when I make the following claims, I am not trying to justify punishment to people who already know they are offenders. I am trying to appeal to their sense of justice in the absence of particular knowledge about their station in life. Under this veil of impartiality, we can assess whether a liberal democracy’s failure to create credible institutions of retributive justice — when it has the means to do so — undermines our commitment to these principles, fostering a sense of impunity and contributing to the con-ditions that erode our belief in the free and equal nature of persons.

Thus, what’s important to see is that the good achieved by punishment is bound up in the practice of punishment itself, so that the practice of punishment has an intrinsic value, and its achievement makes the practice and its limits both internally intelligible and attractive. Equally important, the account offered below explains why the state, rather than the victim or her allies, ought to be the agent that both adjudicates the case of the offender and ensures adequate but not excessive punishment.


1. Responsibility for Unlawful Behavior


Retributive punishment for legal wrongdoing is justified in part because it commu-nicates to the offender that we are respecting him by holding him as a responsible moral agent, capable of choosing and acting unlawfully and therefore in a blameworthy manner. When we credibly attempt to punish an offender who steals, rapes or murders, we are try-ing to tell him that his actions matter to this community constituted by shared laws, and that he will be held responsible for his unlawful actions. Imagine Jack’s attack on the dog and that such attacks are illegal. If the state, in its ordinary course of business, knowingly did nothing in the face of Jack’s attack, its inaction could be read to express two social facts: first, an indifference to the legal rights of its citizens, particularly to the security of their persons and property; and second, a statement of condescension to Jack that my ac-tions will not be taken seriously by the state. When the state makes a credible effort to punish Jack for his action, he’s told he will be held responsible for his unlawful actions. In this way, the attempt at punishment communicates the view that we are autonomous agents capable of responsibly choosing between lawful and unlawful actions.

Communication to the offender is of fundamental importance here. Indeed, the practice of retribution would itself not be internally intelligible if the offender could not understand the message that the state was sending during its confrontation with the of-fender after its adjudication. The offender must be able to understand the communication, though he need not be persuaded by it. He may proclaim his innocence notwithstanding the evidence to the contrary, but if he cannot understand on what grounds he is being pun-ished, then the punishment is not retributive punishment, but merely a coercive deprivation visited upon the offender whose condemnatory character is lost to the offender.

This argument may seem similar to moral desert, but it’s not exactly the same. Think of Jack. Imagine at T1, Jack crushes his neighbor’s dog but then at T2 he bangs his head accidentally and subsequently no longer remembers who he is or what his actions were at T1. Arguably, nothing has happened to change his moral desert; but the point of punishment would be lost — not because he’s suffered a trauma — but because the pun-ishment would lose its communicative significance.

Of course, through the institution of its communicative practice, the state’s retribu-tive punishment also performs an important expressive function. That is, when the state issues plausible threats of coercive condemnatory deprivation through institutions of re-tributive justice, that threat suffices to signal the norm that our actions and our interests matter to the state and those around us. But the point of the practice of retributive punish-ment is not at its core designed to achieve general psychological satisfaction, reduce pri-vate violence, or educate the public about norms of right conduct. Its value is intelligible independent of those consequences. On the other hand, punishment itself may not be nec-essary to communicate the value of being held responsible in particular instances to par-ticular offenders. We might, for instance, envision an offender who, immediately after committing his misconduct, came forward, made restitution, accepted responsibility, and evinced his awareness of this ideal through his own process of repentance. So something else is at stake when we say that state coercion may justifiably be used even where the of-fenders have apparently internalized the significance of the first ideal.


2. Equal Liberty Under Law


Even against a quickly repentant offender, retributive punishment is desirable to effectuate our commitment to the principle of equal liberty under law. In a liberal democ-racy, punishment serves to fulfill part of equality’s promise because we are each burdened by a legal obligation as citizens to obey the law. (By situating this account within liberal democracies, I am assuming that the laws in question are both reasonable, and legitimately generated and applied. The account here may alter as applied in contexts that depart from these conditions.) When someone flouts the law, he elects to untether himself from the common enterprise of living peaceably together under a common law. He is not merely flouting a particular law that he may disagree with, but rather he defects from an agreement about the basic structures of liberal democracy that he (would have) made as a reasonable person in concert with other reasonable people. By his act, the offender implicitly says, “I have greater liberty than you, my fellow citizen.” He cuts himself off from the social order for the purpose of imposing a new order by his acts against people who should enjoy equal liberty as guaranteed by the state’s rule of law in a liberal state.

By making credible the threat to impose some level of punishment, the state is giv-ing its best reasonable efforts to reduce the plausibility of individuals’ false claims of supe-riority, over their victims, if there are any, or against the state. The state’s coercive meas-ures serve as measures communicating our fidelity to the norm of equal liberty under law. Moreover, the measures are communicated to the person most in need of hearing that mes-sage: the offender who has been held to violate our laws. This account reveals in part, then, the intrinsic intelligibility of the practice of retributive punishment—apart from the other beneficial consequences that may contingently arise from its practice.

On this view, it does not matter that few people, if given the chance, would seek to steal, rape, or murder. All that matters is that the offender can be seen, ex ante, as defect-ing from a legal order to which he has good reason to give allegiance, and that he defects in such a way that expresses that he has taken license to do that which others are not entitled. If the state establishes no institutions to credibly threaten his punishment, the offender’s implicit or explicit claim to superiority over others commands greater plausibility than it would be if the state had created such an institution. This rationale helps explains both the notion of equal liberty and its reciprocal obligation of restraint.


3. Democratic Self-Defense


The reasons mentioned so far—effectuating responsibility and instantiating equal liberty under law—are insufficient to explain why the state should decide and implement matters of punishment. All that’s been hitherto explained is why punishing an offender for his unlawful action has some intrinsic intelligibility. But why should the state play the central role in meting out retributive justice? After all, it is only a modern phenomenon that the state has assumed such a function.

Our answer lies in the notion of democratic self-defense. Recall from the sub-section above how an offender’s misconduct implicitly or explicitly serves to substantiate a claim of superiority made by an offender’s unlawful action. That claim of superiority is not merely a claim against his victim. Rather, the offense is a rebellion against the political or-der of equal liberty under law. Each time an offense occurs, the offender tries to shift where the rules of property and inalienability lie, at least with respect to him. In doing so, the offender revolts against the determinations of what those rules are and the constitu-tional rules determining who gets to adjust these rules. Perhaps unwittingly, the offender can be viewed as usurping the sovereign will of the people by challenging their decision-making structure.

The misconduct, then, is not merely against the victim but also against the people and their agent, the state, whose charter mandates the protection, not only of the persons constituting the political order, but also the protection of the decision-making authority of the regime itself. It’s interesting that the principle of democratic self-defense is embodied in the oath taken by federal officers, the substance of which obligates officials to protect the decision-making structure of the nation. The oath illuminates the idea that the Consti-tution must be defended against attack by those who shift the rules unlawfully, thus reveal-ing offenses as, to a greater or lesser degree, forms of rebellion.

To be sure, if we asked the typical offender who commits a “smash and grab,” he would deny that he is making any “implicit” or “explicit” “claim” against the victim, deny that he is engaging in rebellion, and definitely deny that he is trying to “shift” the rules of property or usurp the will of the sovereign. He is just violating the law and hoping to get away with it because he needs or wants the money. Consequently, there might be some-thing unreal about viewing proscribed conduct as a rebellion. But it only looks unreal if I’m supposed to explain why punishment is justified to an offender who already knows he’s an offender. To my mind, that objective seems misplaced. As alluded to earlier, my goal is to explain the attractiveness of retributive punishment to a person trying to secure the conditions for human flourishing ex ante: that is, before he knows whether he’s going to be rich or poor, an offender or a victim, and knowing that he will be able to control his conduct and be punished only for misconduct proscribed by law and subject to his control. Speaking to that person, the attempt to read such misconduct as rebellious seems a lot less unreal.

What’s more, to see the offense as a rebellion is not to say that all rebellions need be quashed with maximal use of resources. Quite to the contrary, the scarcity of social re-sources in a society committed to pursuing various projects of moral significance requires a principle of frugality regarding the use of retributive punishment, such that the state pur-sues and punishes only those acts that are necessary to limit, in order to secure the condi-tions conducive to human flourishing.

Of course, prior to imposing sanctions, the state also must make an adjudication of whether such sanctions are appropriate. What justifies the state’s involvement instead of some private ordering arrangement? For one thing, the modern liberal democratic state serves, almost invariably, as a social union of social unions within a heterogeneous soci-ety. And because private citizens rarely know who will violate their rights to security and property, and thus cannot reach agreement on a dispute resolution mechanism ex ante, the state has the best claim to be both impartial in resolving disputes among its citizens and ac-ceptable to them as the decisor of the disputes among these diverse citizens and the en-forcer of sanctions against the wrongdoer. So we now have a reason to respect the state’s involvement in both adjudication and sanction of wrongful misconduct so long as we can establish a judiciary independent of the executive and capable of ensuring fidelity to liberal constitutional norms that reasonably divide power between prosecutors and judges. This division of labor may be facilitated by the use of juries, especially when there is doubt about the state’s capacity to restrain from tyranny or zeal.


4. Why Punish the Guilty and Not the Innocent?


Commitments to the three ideals described above explain not only why it is attrac-tive to create institutions of retributive punishment but also why certain individuals should be punished and not others. Specifically, we can see why — without recourse to or reliance upon mere intuitions or emotions of vengeance, anger, or hatred — the state must take care to punish only the guilty, and not the innocent. After all, only an actual offender who has been convicted has been judged to have made claims denying his responsibility, his status as an equal under the law, and his proper role in the chain of democratic decision-making. Those found guilty should be punished to contest their false claims. To not punish when we reasonably could is to signal that we don’t care about the actions of the offender or the rights and interests underlying the rule the offender breached or the integrity of our democ-ratic decision-making structure. Additionally, to under-punish or over-punish relative to comparable offenders is to make (rebuttable) claims that some people are granted favors at the hands of the state, violating a basic liberal commitment to equality under the law. By contrast, the innocent should not be punished because they have neither made claims of le-gal superiority through their actions nor can they plausibly be deemed to have usurped power from the decision-making structure to which they have good reason to obey ex ante.

Two points bear emphasis. First, we now have good reasons to reduce both Type I and Type II errors (including problems of under- and over-punishment) in a system reflect-ing retributive values in a liberal democracy. Second, the internal intelligibility achieved by punishment of a guilty offender in turn explains the conceptual linkage between legal guilt and retributive punishment. That does not mean that other theories that are more self-consciously utilitarian are wholly inappropriate bases for thinking about what conduct to criminalize or how to conceive punishments. It just means that they cannot provide a con-ceptual linkage between legal guilt and punishment for proscribed offenses.


B. The Internal Limits on Confrontational Retributivism


I still need to articulate the limits of retributive justice. These limits will necessitate some substantive and procedural safeguards if we try to translate the lessons from this dis-cussion about retributive justice to retributive damages.


1. Modesty with Power: One Institutional Duty Among Many


First, as I adverted to earlier, the practice of retribution is only one attractive social practice among many. Every person interested in social planning must realize that, on the margins, resources spent on the project of retributive justice are resources unavailable for feeding the hungry, housing the homeless, and healing the sick. Thus, to say that retribu-tive justice justifies institutions of punishment in liberal democracies does not mean that punishment ought to be imposed under all circumstances such that the ceaseless or careless pursuit of retributive justice consumes our every and last unit of social resources. This need for moral balancing is consistent with retributivism’s animating moral ideals because, far from being unconcerned with consequences, retributivism urges on offenders the maxim that one cannot disclaim responsibility for the reasonably foreseeable results of one’s freely chosen actions. That maxim applies to retributivist social planners as much as to offend-ers.

Relatedly, the practice of retribution poses significant risks of error and abuse by authorities. When errors or abuses occur, they stand at odds with the animating principles of retributive justice. Consequently, retributive punishment can only be commended when sufficient measures are taken to substantially reduce or eliminate those risks. For that rea-son, retributive practices must be conducted with a degree of modesty, rather than pride, and upon assurances that those risks of error and abuse are tolerably minimal. While invok-ing a principle of modesty may seem theoretically vague, it actually has substantial policy implications. Because the state must demonstrate its awareness for error and abuse, it should forbear from those punishment strategies that evidence a preening sense of superi-ority: modesty in punishment, I’ve argued, entails limits on the state’s ability to adopt pun-ishments like the death penalty that prevent the state from exhibiting contrition to the of-fender wrongly punished.


2. Confrontational Retributivism and Prevention


Second, viewing retributive justice as an institutional practice raises a related point about prevention of offenses. As a practical matter, the establishment of institutions ad-vancing retributive justice will assuredly have some concomitant effect on preventing wrongdoing in the future. This preventive effect in no way taints the moral worthiness of the practice of retribution. (Indeed, for some non-retributivists, the preventive effects are the evidence of the practice’s morality.) We should not rest on incidental deterrence alone, however. The genuine possibility of achieving greater deterrent effect compels mindful-ness of the way in which the state responds to proscribed misconduct; after all, that re-sponse may directly affect the incidence of the proscribed misconduct. If punishing persons is a way for government to respect persons, as some have suggested, then so too is gov-ernmental attention to the prevention of harm to them (and their rights). Thus, if hypo-thetically we were better able to prevent instances of the offense by spending more on the probability of detection and less on the intensity of punishment, we would be remiss in our responsibilities to each other if our institutions did not reflect that factor at all. Conversely, if we could determine that punishing an offense more severely would, with reasonable evi-dence as our basis, reduce the amount of offenses (or in an error-prone system, reduce the number of innocent persons mistakenly swept up in the enforcement dragnet), then that too would constitute a reasonable consideration from a retributivist perspective that considers its ex ante function properly.

Of course, for the most part, these questions of deterrence are contingent and speculative, at least in situations of street offenders, for whom the attribution of rational calculations is somewhat more problematic than it is for organizations. I mention these issues about deterrence solely to explain that deterrence, or better, “prevention,” is not a concern inherently hostile or antithetical to the project of retributive justice. Indeed, pre-vention of offenses is conceptually entwined in important respects with retributivism’s ex ante function because of the underlying mission of preserving and protecting persons and their rights within a polity committed to obtaining the conditions of freedom and security necessary for human flourishing. For that reason, it should come as no surprise that this pluralistic account of retributive justice is able, in the context of extra-compensatory dam-ages, to recognize the distinctive worth of the values underlying other approaches empha-sizing cost-internalization or victim-vindication.


3. Transformative Intent and Confrontational Retributivism


Third, and for now, finally, embedded in the account of the CCR is an intent re-quirement on the part of the state’s punishing agents. To insist only on the offender’s per-ception of his defeat, to the exclusion of the potential internalization of correct values that the confrontation encourages, would undermine the (CCR’s first) interest we have in af-firming our recognition of each other as autonomous moral agents capable of responsible decision making. In order to achieve this vision in the concrete practice of punishment, it is crucial that the denial of the offender's message is explained and carried out in a way that is conducive to the internalization of the values that the retributive encounter is meant to uphold. The encounter need not guarantee the internalization of those values, but it cannot proceed without the desire for that result, and the state ought not take measures that, in the course of punishment, would directly preclude it. At bottom, the state must hope its pun-ishment not only works to deny the offender's claim of superiority, but also his transforma-tion.


C. Confrontational Retributivism as Distinct from Revenge


If we agree that these principles provide a dignified image of retributive justice, then we can see how, contra various courts and commentators, retributive justice might usefully be contrasted with revenge. To begin with, what induces retributive punishment is the offense against the legal order. Where the law runs out, so must retribution. By con-trast, revenge may address slights, injuries, insults, or nonlegal wrongs. The philosopher Robert Nozick identified five other characteristics that tend to distinguish retribution from revenge: (a) retribution ends cycles of violence, whereas revenge fosters them; (b) retribution limits punishment to that which is in proportion to the wrongdoing, whereas revenge is not properly limited by principle; (c) retribution is impartially administered by the state, whereas revenge is often personal; (d) retributivists seek the equal application of the law, whereas no generality attaches to the avenger’s interest; and (e) retribution is cool and unemotional, whereas revenge has a particular emotional tone of taking pleasure in the suffering of another.

A few other important distinctions can be drawn: (f) retributivism always seeks to attach the punishment to the offender directly because it is the offender who makes the claims the state seeks to reject, not the offender’s children or parents, whereas revenge may target an offender’s relatives or allies; (g) retributivism is uninterested in making the of-fender experience generic suffering; rather, and quite distinct from revenge, retribution seeks to use the state’s power to coerce the offender in particular ways, such that certain ideas can be communicated through that coercion; (h) retributivism is interested in, and speaks to, the moral autonomy and dignity of the offender, whereas revenge may be indif-ferent to those qualities; such indifference crucially affects whether and what kind of de-fenses might limit retribution; (i) and finally, retributivism’s intent requirement, discussed above, requires that the punishment not preclude the internalization of the “sense of jus-tice” that would allow for an offender to demonstrate his respect for the norms of moral re-sponsibility, equal liberty under law, and democratic self-defense, whereas revenge has no such requirement.

The value of retributivism, on this account, is realized when the state makes the at-tempt to communicate its commitment to these three norms through the use of its coercive power against him. In contrast to those who might be tempted to view retributivism as merely an “expressive theory” that can be reduced to the success of its norm-projection to society, the CCR reveals retributivism’s intelligibility even if we focus strictly on the rela-tionship between state and offender.

Having explained the internal intelligibility of the public interest in retributive jus-tice, I now turn to how these principles apply to the justification and design of retributive damages.” To be clear, I’m not arguing that confrontational retributivism is the only per-missible justification for extra-compensatory damages; rather, my claim is that adherence to this conception of retributive justice both permits and guides the construction of a re-tributive damages scheme that can be faithful to values including accuracy, modesty, pro-portionality, and equality. Moreover, such a scheme can co-exist peacefully with other purposes sometimes ascribed to punitive damages including but not limited to cost-internalization and vindication of a plaintiff’s autonomy or dignity.


D. Some Implications for Retributive Damages


In this Section, I merely foreshadow how certain values emanating from the pre-ceding account are relevant to the design of retributive damages. I will say a bit more about this in Part III.D. The values have to do principally with: legality, equality, and modesty. 

First, this is a legal account of retributive punishment, meaning that what triggers any kind of state-backed sanction must be a violation of a clearly delineated statute that spells out with granularity the kind of misconduct that warrants even an intermediate sanc-tion. 

Second, it is an account of punishment animated by concerns for respecting our right to be regarded as equal under the law.  The concern for equality has several notewor-thy implications. To begin with, a system that arbitrarily selected for punishment some people’s illegal misconduct while systematically — or haphazardly — leaving untouched the illegal misconduct of others would be one that participated (perhaps unwittingly) in the making of false assessments of whose interests count how much in a liberal democracy. Consequently, when people defy their equal obligation to obey the rules the state has im-posed to protect the rights of others, the state may seek to punish them through traditional criminal law; but if the state doesn’t know of the misconduct or can’t reasonably put its prosecution at the top of its priority list, then it should at least empower private parties to pursue an intermediate sanction like retributive damages. But because these retributive damages are in fact a state-imposed sanction—that is a coerced condemnatory depriva-tion—these damages should be credited against any further criminal punishments for the same misconduct for the sake of avoiding duplicative and disproportionate punishment.

A concern for equality also means curtailing the lottery effects of most punitive damages structures. Plaintiffs shouldn’t receive windfalls because they have the good for-tune of a wealthy injurer and defendants shouldn’t receive discounts based on the good for-tune of having a low-earning victim instead of a high-earning one. In other words, rewards or penalties should not be contingent upon morally arbitrary features of the victim or the defendant.

The CCR also stressed modesty, which entails a high regard for accuracy-enhancing features of adjudication (i.e., the state shouldn’t leap to conclusions quickly and without solid indicia of reliability) and a disdain for measures of punishment that preclude the defendant’s internalization of the retributive message. Applied to retributive damages, defendants should enjoy procedural safeguards that elevate our confidence levels above what’s necessary for compensatory damages but below what’s expected for full-blown criminal sanctions. Moreover, a concern for modesty would entail limiting and structur-ing retributive damages payments so they operate as an intermediate sanction, and hence, won’t jeopardize the ability of the defendant to continue his life or business in compliance with the law’s dictates. Additionally, modesty requires procedural fairness. Specifically, defendants have a right to present defenses that show the conduct to be excused or justi-fied. This has important implications for doctrine. We cannot assume that because a defen-dant wronged one party that the same conduct would necessarily be culpable misconduct to another person in the same jurisdiction or another. That’s the gravamen of the Court’s holding in Philip Morris: a defendant should be able to present defenses they might have against persons who are strangers to the litigation and they shouldn’t be punished based on the harm they may have lawfully caused another. A defendant’s rights to a fair adjudication can’t be eliminated simply because it would make the case a better vehicle for cost-internalization.


E. Why It All Matters


Although the vast majority of civil litigants never receive an award of punitive damages, the times that juries do award punitive damages often make the news. The effect of this publicity is not lost on potential defendants: punitive damages influence the way potential parties view or settle an array of torts cases. Indeed, if punitive damages did not raise much concern, it would be hard to understand why various entities have in re-cent years underwritten the activities of think tanks and academics interested in tort re-form.

In the context of retributive damages, those potential costs may be especially sig-nificant if there are inadequate measures to ensure accurate and fair adjudication. Further-more, the fear of retributive damages may cause some defendants to litigate with greater tenacity or they might refrain from the activity under scrutiny because the activity is close to the line of unlawful but still inside the safe zone. The risks associated with retributive damages are not trivial. When courts and juries award punitive damages, they stigmatize and condemn the defendant. Moreover, if erratically assigned, awards of punitive dam-ages imperil the planning and structuring activities of defendants. Hence, to the extent punitive damages are mistakenly and erratically deployed by juries or courts, there are real consequences that should trigger caution prior to their distribution.

For these – and other – reasons, various scholars, judges and politicians have laced into the typical common law punitive damages regime, calling it unpredictable, undesirable, and far worse. Although the dangers regarding the size, unpredictability, and frequency of punitive damages have been exaggerated, the presence of these risks is not trivial and commands a simple precept: if punitive damages are awarded, they should be awarded and distributed in a way that is ultimately beneficial for society and at the same time consonant with the values a just and attractive society should embrace.

This perspective of caution, however, is not regularly voiced from the cheerleaders for punitive damages in the academy or in the bar. For that reason, having a structure that carefully harnesses the energy of retributive justice while minimizing its risks is important. Indeed, I want to alert the reader to the sensitivity I have for both respecting and constraining retributive energy and I hope that what follows will ensure that I’m not, as it were, writing a check on insufficient funds.

Posted by Administrators on March 24, 2008 at 12:03 AM in Retributive Damages | Permalink


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