Tuesday, August 21, 2012
Jill Wieber Lens (Baylor) has just posted "Justice Holmes's Bad Man and the Depleted Purposes of Punitive Damages" to SSRN. The abstract provides:
In Exxon Shipping Co. v. Baker, the Supreme Court resolved a common law challenge to a punitive damage award. The freedom of the common law authority allowed the Court to address punitive damages from a policy basis. The Court described its ideal system for imposing the damages, one in which Justice Holmes’s bad man would know the punitive award he will face if he commits tortuous conduct. Its citation to Justice Holmes’s bad man reveals that the Court thinks very little of the damages’ punishment and deterrence common law purposes.
Justice Holmes’s bad man sees civil law only as a requirement to pay damages, and he assumes he will have to pay those damages. Applied to punitive damages, the lack of morality depletes the punishment purpose — the damages lose their basis for imposition, expression of moral condemnation, and resulting stigma. The assumption of guaranteed liability also rejects possible independent substance for the damages’ deterrence purpose by disregarding under-detection and under-enforcement.
The Court’s views on punitive damages have proven influential. Its conceptions of aimless punishment and deterrence in Exxon Shipping Co. make the damages even riper for legislative reform. But even if they survive reform, the depleted purposes are likely insufficient to constitutionally justify an award. Surprisingly, a common-law-based Supreme Court case, as opposed to a constitutionally based one, may be the last nail in the coffin of punitive damages.