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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, February 24, 2007

Punitive Damages



The punitive damage system does lead to arbitrary windfalls to individuals to provide broader incentives, and on balance I would prefer the European regulatory model to the American system, which relies more heavily on torts to constrain injurious corporate behavior (although obviously the more bureaucratic model also comes with costs.) ...

Whether it's optimal or not, punitive damages are a major method for constraining behavior that is contrary to the public interest in the American system. If legislatures want to limit punitive damages--whether to move to a more bureaucratic model of (much more likely) to make it easier for corporate donors to injure people without consequences--that's their privilege. But I don't see any basis for using a (to put it mildly) highly contestable reading of the Constitution to limit damages in the hope that a better system might spring up in its place.


- LGM

There is a book on the side panel that is strongly against the recent strand of punitive damage cases, arguing that the judgments were sound and that state courts did enough (if not too much) to reduce "excessive" awards. But, on the final page Stephanie Mencimer notes:
Americans ask a lot of tort law. It's supposed to provide a social safety net, a regulatory structure, and a justice system all in one. It can't do them all well; it's a miracle the system functions as well as it does.

Ah the rub. Punitive damages ultimately grow out of our views of individual responsibility, which includes use of the civil court system in a way that even supporters of the process find (admit) is problematic. One reader of this blog takes the apparently minority opinion that punitive damages are not only in effect criminal fines (punishment, not mere compensation, with a public flavor at that), but that this means that a higher standard of proof is required. Some like Justice Stevens support one, but not the other -- they push for careful scrutiny, including tests for "excessiveness," but not the arguably logical follow-up higher standard of proof that this suggests.

My tentative stance is that punitives have a mixed criminal and civil flavor, including those in which the state requires some part of the proceeds go to some public fund. It is often simply hard in some cases to divide civil and criminal, especially when the government is involved. For instance, some consider certain types of "civil" commitment not 'criminal' in nature, so less protection is required. But, what exactly is the point of punishment? It often is to protect society and rehabilitate, as much as we can, individuals. Forced confinement in mental institutions, perhaps because the person is a child molester, is not seen by the person involved as less than punishment, even if it is deemed "civil."

[I also think that the fact private persons are involved in most of these cases underline the "civil" flavor of things, or at least, the civil enough flavor to warrant somewhat less securities than those that are required in criminal cases. In those cases, the might of the state is involved, often threatening a loss of liberty. The fact corporations are involved also factors in to some degree, an offer of incorporation not a right, but a privilege that offer less security for loss. Cf. Arbitration clauses.]

Traditionally, punitive damages have been allowed, which gives them a flavor of respectability on due process grounds. One can only go so far there, of course, or we will defend criminalizing sodomy. Still, the latest case also raises a further point: what exactly is the point of punitives? Blocking the Courthouse Door is largely about depriving people of proper compensation. Compensation that might very well be better obtained by things like universal health care and adequate state enforcement. But, we take what we can get. And, many who want to reduce punitive awards want to supply less.

Surely, a case can be made that the Breyer/Souter/Stevens wing rather have both. And, if we are stuck with a flawed system, the lack of adequate alternatives doesn't warrant cheating, does it? Consider school vouchers. Some point to the inadequacy of the public school system as a reason why we need more funding of religious schools. The First Amendment difficulties involved are tossed aside as at best overtechnical liberal claptrap. Some critics of this approach note that vouchers only do so much, but many also point to the constitutional problems. IOW, the Constitution limits our options, even if we don't like it.

But, again, what does the system offer? Does the current line of cases improve things? Did the states, where most of these cases arise (though recent legislation and desire for more would push more things into the overworked lower federal courts), not properly regulate damage awards? Is using some sort of single multiplier (of compensatory damages as compared to punitives) instead of some other means (effect on the wrongdoer comes to mind) the best way to attack the "excessive" problem? And, as to other due process concerns, is the current path in the end that helpful? Unclear.

Back to compensation. What is compensation? Justice Stevens suggests that punishing one's wrongdoers includes cases when the civil penalty doesn't just go to the victim and is formulated based on harm to others [is it really news that this factors in? that is, lack of fair warning exists? and if it's wrong, is the majority's approach really that much better?]. Punitives generally are based on the reprehensibility of the action. The last case suggests, in some fashion, that it should be limited to the harm of those who bring the cases. But, we also hear of the deterrent effect of such lawsuits. Why? Often the people involved themselves won't be harmed again. Sounds like public thing. Not just the specific plaintiffs.

Like the civil justice system in general, they also provide a backdoor means to address harms that might be dealt with better in other ways. Maybe, compensatory damages are rather limited, intangible harms like emotional distress pretty limited or maybe not even existent in certain cases. And, if "emotional distress" and the like is compensatory, what $$$ figure is involved? Punitive damages start to seem almost redundant, in a fashion. Well, rather, they can be, if the system is tweaked in a certain fashion.

Ultimately, we have a situation here that underlines that the Constitution is not just for the courts. A sane damage regime would involve an overhaul of how the government handles things. But, until that happens, I don't think we should have unilateral disarmament, so to speak. Surely, we can regulate the punitive damage system. Time has brought more and larger lawsuits, partially given the continuing breadth of the problems. But, with size comes the need to regulate. This includes the court system, but again, also the industrial system that the civil system imperfectly tries to regulate. Would it not be best, however, if a sound public policy in general was involved too?

And, yes, democracy factors in too -- we have Presidents more corporate friendly or at least more wary of lawsuits, and members of Congress too. This brings judges in too; lest we forget, Stevens and Souter are Republicans, Breyer's* nomination opposed by Nader as another moderate Republican move by Clinton. But, the people -- though certain powerful minority factions use our distrust of the government and desire to apply blame when often impersonal factors are as much to blame (which shouldn't mean it's "tough shit" for the victim) -- also support that sound public policy I just mentioned. We need to get back a government that is forceful enough to truly offer it, not just be somewhat sympathetic.

Listening '08 wannabees?

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* Breyer has a tendency to "split the baby" that results in results that aren't quite liberal, which sort of reflects the person who nominated him. This approach, also practiced by O'Connor, tends to have a mixed result. It holds the course so that things don't go too far, whatever that means, but often results in conservative results given the current membership of the Court.