Sunday, July 2, 2006

Fun with Fungibility of Damages

A new SSRN paper by Jonathan Klick (FSU) and Catherine Sharkey (Columbia) suggests that caps on punitive damages may not be a completely effective way to control damages (if such control is your goal):

Conventional wisdom suggests that punitive damages are growing out of control. To stop juries from awarding blockbuster punitive damages, a number of states have passed caps to set a ceiling on the amount of punitives. In principle, if plaintiffs' attorneys and/or juries wish to circumvent such caps, they could simply increase the amount of compensatory damages awarded. To investigate this possibility, we examine data from the Civil Justice Surveys performed by the National Center for State Courts and present evidence in both difference-in-difference and triple differences frameworks that punitive damage caps are associated with an increase in compensatory damage awards. These results suggest that caps alone are a poor way to constrain damage awards.

http://lawprofessors.typepad.com/tortsprof/2006/07/fun_with_fungib.html

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