Tuesday, May 27, 2014
Anthony J. Sebok (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Normative Theories of Punitive Damages: The Case of Deterrence (John Oberdiek, ed., Philosophical Foundations of the Law of Torts (OUP 2014)) on SSRN. Here is the abstract:
This essay argues that deterrence-based theories of punitive damages face difficulties that deterrence-based theories of criminal punishment and most other deterrence-based theories of private law do not face. The essay notes that deterrence-based theories of punitive damages can be distinguished from theories that justify the imposition of punitive damages based on retribution and compensation, although courts (including the U.S. Supreme Court) generally do not feel compelled to pick among theoretical justifications. This essay does not argue on behalf of any other justification; it argues against deterrence.
The essay argues that it is significant that, unlike many modern deterrence theories of criminal punishment, many modern theories of punitive damages (such as Polinsky & Shavell) reject any primary significance of the mental state of the party who is liable for punitive damages. Deterrence theorists recognize that in the case of criminal sanctioning, those whom the state hopes to deter in the future must believe that the sanctions issued in the past were based on public judgments concerning the imposition and scale of the sanctions.
The “common law” processes of punitive damages (e.g. punitive damages as currently practiced in the states that have not been significantly modified by statute) lack many of the features that would allow those whom the state hopes to deter in the future must to conclude that the punitive damages issued in the past were based on public judgments concerning the imposition and scale of the sanctions. This is a result of features of tort law as private redress, which are otherwise seen as hallmarks of tort law. For example, only the victim may request punitive damages, and may elect to forego them if she chooses and the factfinder, subject to state and federal constraints, is empowered to “legislate” the sanction without any of the usual inputs from both the electorate and experts that aid legislatures when promulgating a sentencing scheme.