Criminal Justice

The Puzzle of Punitive 'Damages'

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Last week The New York Times ran a front-page story by Adam Liptak that describes the dismay caused in foreign courts by the American concept of punitive damages. It's not just that such awards are sometimes jaw-droppingly high; it's also that they serve a purpose, punishment/retribution, that is usually said to be a function of the criminal justice system, where defendants enjoy stronger procedural safeguards than they do in civil courts. Punitive damages—which are not really damages at all, since compensation for injuries is not the goal—invite juries to pick numbers out of thin air, with little or no statutory guidance, as an expression of how reprehensible they think the defendant's conduct was. And while the Supreme Court has said the Due Process Clause imposes some limits on the ratio of punitive to compensatory damages, it has not taken the next logical step of saying that when the goal is explicitly punishment rather than compensation, defendants should receive all the protections they would get in a criminal case, including a higher burden of proof for the accuser. To the outside world, Liptak reports, all of this looks pretty bizarre, ad hoc, and unprincipled:

Most of the rest of the world views the idea of punitive damages with alarm. As the Italian court [that refused to enforce a punitive damage award against an Italian company] explained, private lawsuits brought by injured people should have only one goal—compensation for a loss. Allowing separate awards meant to punish the defendant, foreign courts say, is a terrible idea.

Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors. It is not fair, they add, to give plaintiffs a windfall beyond what they have lost. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators….

"The U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages is regarded almost universally outside the U.S. with a high degree of disfavor," said Gary Born, an American lawyer who works in London.

Foreign lawyers and judges are quick to cite particularly large American awards. Julian Lew, a barrister in London, recalled a Mississippi court's $400 million punitive award against a Canadian company in 1995 with scorn. "It did bring America into total and utter contempt around the world," Mr. Lew said.

I express my own high degree of disfavor toward punitive damages here and here, among other places.

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  1. The fact that Europeans don’t like punitive damages makes me think they’re actually a good idea.

    Punitive damages for all!

  2. But surely distributed unequally?

  3. Here is how I would explain it to a foreigner from a “first world” country:

    You know how you have comprehensive strict liability and socialized medicine? Well, we in the US don’t have that. We have punitive damages instead.

    What’s that? You think that makes big business happy?

    No, no, they still hire journalists to complain about it and say the US should be more business-friendly like modern China.

  4. Kang: Punitive damages for all!

    (crowd boos)

    Kang: Very well, no punitive damages for anyone!

    (crowd boos louder)

    Kang: Punitive damages for some, miniature American flags for others!

    (crowd cheers)

  5. And the ad hoc opinions of a jury, they say, are a poor substitute for the considered judgments of government safety regulators…

    Their were making some pretty good points until they got to the above.

  6. Punitive damages are the lifeblood of American lawyers — JUSTICE! I meant justice.

  7. First of all, when it comes to bizarre, ad hoc, and unprincipled judicial shenanigans, the US strictly amateur next to major league Italy. And while I am leery of “the ad hoc opinions of a jury”, I still think they’re preferable to the corrupt judgments of government safety regulators.

  8. So, just how are we supposed to get even with whitie if we can’t legally take his stuff?

  9. Julian Lew, a barrister in London, recalled a Mississippi court’s $400 million punitive award against a Canadian company in 1995 with scorn. “It did bring America into total and utter contempt around the world,” Mr. Lew said.

    See, I thought we were universally loved until Bushchimpler McGenocide invaded Iraq to bring America into total and utter contempt around the world.

  10. how are we supposed to get even with whitie if we can’t legally take his stuff?

    Whaddaya mean “we”?

  11. See, I thought we were universally loved until Bushchimpler McGenocide invaded Iraq to bring America into total and utter contempt around the world.

    You mean ‘Ronnie Ray-gun’ did not gain us total and utter contempt around the world long before 1995?

  12. Old World always look down on Tonto.

  13. Damn you, TallDave! You beat me to it.

    Moving on to the actual issue at hand, I would argue that the blurring of the distinction between civil and criminal justice is on par with the expansion of the commerce clause in terms of its negative impact on our society. Unfortunately, the average person is unaware of its significance. Kudos to Liptak and you guys for shedding some light on it.

  14. Punitive damages should be personal, not financial. Torture the wrongdoers.

  15. Punishments, they say, should be meted out only by the criminal justice system, with its elaborate due process protections and disinterested prosecutors.

    Disinterested prosecutors? What kind of fantasy land has disinterested prosecutors?

    Most of the prosecutors in this country are every bit as biased as any plaintiff’s counsel.

    Is someone trying to tell me it’s different somewhere else?

  16. Torture the wrongdoers.

    Would you rather be waterboarded for 2 minutes or pay $1M?

  17. Jacob, you included all the stuff that buttressed your arguments and left out the section that didn’t. To wit:

    At the same time, courts in a few countries around the world are expanding the availability of punitive damages.

    The Tribunal Supremo in Spain, for instance, enforced a $1.3 million punitive award in a Texas trademark and unfair competition case in 2001. The Supreme Court of South Australia in 2005 indicated that it would consider enforcing American punitive awards where they involved “brazen and fraudulent conduct.”

    Perhaps most notably, the Canadian Supreme Court in 2003 upheld a $50,000 punitive award in a Florida land dispute, saying it “does not violate our principles of morality.”

    Justice Louis LeBel explained, with an air of resignation, why this was so, saying there was nothing in the American approach that was inherently offensive to Canadian ideas of basic fairness.

    “It is simply a different policy choice,” he wrote, “and it affords U.S. plaintiffs a level of protection of which they ought not necessarily to be deprived just because the defendant’s assets are here.”

    Even in Germany, which flatly rejected an American punitive award in 1992, there are signs of change, said Franco Ferrari, a law professor at the University of Verona in Italy. “The traditional compensatory regime has been permeated by punitive elements,” he said.

    In cases involving a fake interview with Princess Caroline of Monaco, intellectual property and employment discrimination, he said, German courts have started to award damages that seem to be meant to punish as well as compensate.

  18. Would you rather be waterboarded for 2 minutes or pay $1M?

    He said torture, not discomfort.

  19. Uh, I thought the idea of punitive damages was to punish behavior that, while not technically illegal, caused objectively-discernable harm to another party, and was likely to be repeated if the only loss was actual damages. Remember the beginning of Fight Club, where the guy is explaining how his car company, when faced with a dangerous defect in some model, calculates the cost of paying damages from lawsuits resulting from deaths and injuries, and if it’s less than the cost of a recall, they don’t do the recall? That’s what I’m talking about.

    Well, unless you want laws covering every possible way of causing harm to another party in minute detail. Then you could in theory prosecute every civil suit in the criminal courts. But I think we can all agree that has its own downsides.

  20. I would argue that the blurring of the distinction between civil and criminal justice is on par with the expansion of the commerce clause in terms of its negative impact on our society.

    How the heck did O.J. end up in a civil trial after being cleared in a criminal trial? How is that not double jeopardy?

    (Standard disclaimer: Yes, O.J. is a cretin who killed his wife and got away with it, etc.)

  21. Don’t forget, a pure compensatory damage system would create a much greater incentive for wrongdoers to screw the poor. Granted, that incentive already exists, but it’d be much worse without punitive damages. Who cares if you’re refusing to hire black minimum wage workers; all they can get is the measly wage they didn’t get to earn! Want to abuse illegal immigrant labor? All they can get is the subminimum wage they were going to get paid!

    And as much as libertarians may dislike plantiffs’ lawyers, it should be obvious that substituting prosecutors for plaintiffs’ lawyers isn’t going to be that great for the cause of freedom.

  22. when the goal is explicitly punishment rather than compensation, defendants should receive all the protections they would get in a criminal case, including a higher burden of proof for the accuser.

    How exactly would that work? Would you have separate trials for damages and punitive awards? I really don’t see how you could have a half-civil and half-criminal trial.

  23. The Tribunal Supremo in Spain

    That, my friends, is an awesome name for a court.

    And as much as libertarians may dislike plantiffs’ lawyers, it should be obvious that substituting prosecutors for plaintiffs’ lawyers isn’t going to be that great for the cause of freedom.

    Who here is talking about criminalizing anything? We’re just wondering why you can be hit with a fine in civil court without any of the protections you’d get before getting hit with a fine in criminal court.

  24. Edgehopper,

    So much material, so little time.

  25. Would you have separate trials for damages and punitive awards? I really don’t see how you could have a half-civil and half-criminal trial.

    If the plaintiff wants punitives, he has to meet the reasonable doubt test, turn over exculpatory evidence, give the defendant the option (or not) for a jury trial, etc.

  26. R C Dean,

    The Tribunal Supremo in Spain

    That, my friends, is an awesome name for a court.

    It is making me hungry for Taco Bell.

  27. How the heck did O.J. end up in a civil trial after being cleared in a criminal trial? How is that not double jeopardy?

    A wrongful-death civil trial is about financial liability not criminal wrong-doing. The jury in the civil trial cannot put you in jail if they find that you did actually kill someone.

  28. I don’t have a huge problem with putative damages. In my State, if I’m not mistaken, putative damages are capped at $350,000 (medical malpractice cases may differ).

  29. Don’t punitives often have to meet a “clear and convincing” evidence standard?

  30. Blurring the line between civil and criminal is what makes drug asset forfeiture so lucrative for cops (you lose your property in a civil case, not criminal), and also what makes it so easy for DCF (at least in my state) to take your kids away from you; again, it’s a civil rather than criminal issue.

  31. Understanding the logic behind the concept of punitive damages is sort of like understanding the concept behind many Internal Revenue Code laws and regs. It makes sense within a certain framework but that doesn’t mean it makes sense in a moral and ethical world.

    IE, it makes perfect sense to beat the crap out of Mickie Dees for being cavalier about the temperature of their coffee. However, if you look at it logically, unless there was criminal negligence, I don’t see how you can do more than make the woman with the burnt lap well again. Yes, it sends a strong message to Mickie Dees. Yes, they turned down the temp on the coffee, which is still too hot for my tastes. But what are they guilty of? Assault with hot coffee?

    Disclaimer: The foregoing is for illustration purposes only. Anyone who spills hot coffee in their lap deserves a little sympathy, but nothing else. THEY’RE CALLED CUP HOLDERS DUFUS!

  32. I don’t necessarily have a problem with the concept of punitive damages, if they were set as, say, a multiple of the compensatory damages. The damages paid would still be proportional to the harm that the jury found, and it would help set up a system of incentives.

  33. A wrongful-death civil trial is about financial liability not criminal wrong-doing. The jury in the civil trial cannot put you in jail if they find that you did actually kill someone.

    Yes, of course. But he had one trial which resulted in the verdict that he was not guilty. If it’s been declared that nobody can prove that you committed a crime, then that should preclude the possibility that you should have to endure another trial regarding that same alleged crime. In my opinion.

  34. Eliminating punitive damages just invites all sorts of abuses. Not to mention the inevitable abuses that various corporations* would create a public backlash that would lead to far more regulation of business. So you have your choice, regulation by writ for everyone or punitive damages for the few that fuck up.

    * I’m not strawmanning here, but if you reduce the cost of making products unsafe, you will get a lot more unsafe products.

  35. Yes, Mike, but the legal system is all about games, tricks, deception, illusion, technicalities, and exclusions. And the same technicalities and deception that got OJ kicked loose got him back into court on a civilian beef cuz this time it’s merely a preponderance of evidence rather than beyond the shadow of a doubt.

  36. Would you rather be waterboarded for 2 minutes or pay $1M?

    He said torture, not discomfort.

    You must be very rich.

  37. Anyone who spills hot coffee in their lap deserves a little sympathy, but nothing else. THEY’RE CALLED CUP HOLDERS

  38. THEY’RE CALLED CUP HOLDERS DUFUS!

    But what if the cup holder was not properly labeled for hot coffee?

  39. SGMt,

    Actually, I would take the 2 min. waterboarding. I need to save the cash for lighting cigars.

  40. What if it was hotcoffee.zip?

  41. When did the concept of going for a big civil verdict after a criminal trial originate?

  42. THEY’RE CALLED CUP HOLDERS

    not enough insulation

  43. The problem with the karmic explanation is that karma seems to bounce off O.J. Isn’t he still having a good time golfing in Florida? Or karma finally catching up with him over his Las Vegas adventure?

  44. Yes, of course. But he had one trial which resulted in the verdict that he was not guilty. If it’s been declared that nobody can prove that you committed a crime, then that should preclude the possibility that you should have to endure another trial regarding that same alleged crime. In my opinion.

    If you have a car accident and kill someone, you may be found not-guilty of committing a criminal acts, but that does not change your liability for killing someone.

    The OJ case was unique for the reasons the TWC said. One jury said they had a “reasonable” doubt; second said “yea, right”. If I recall, different jurisdictions, different jury demographics, different standard of proof.

  45. The problem with the karmic explanation is that karma seems to bounce off O.J. Isn’t he still having a good time golfing in Florida? Or karma finally catching up with him over his Las Vegas adventure?

    I must not be following his latest adventures as closely as I should. I thought he was still in a Vegas jail, but could easily be wrong.

  46. Note that “not guilty” is not the same as “innocent”.

    Interviews with the jury in the criminal trial showed that most, if not all, the jurors thought he did it.

  47. When did the concept of going for a big civil verdict after a criminal trial originate?

    Don’t know, but why can’t they conduct the civil and criminal trials at the same time. Maybe with two juries sitting in the room. You know, as a way of keeping America on the cutting edge when it comes to speedy trials.

  48. “Most of the prosecutors in this country are every bit as biased as any plaintiff’s counsel.”

    Exhibit A:

    Eliot Spitzer

  49. Maybe with two juries sitting in the room. You know, as a way of keeping America on the cutting edge when it comes to speedy trials.

    Must be what that lawyer was talking about when he brought up two Americas every two seconds.

  50. Hmm, after reading the wikipedia on the Fifth Amendment and double jeopardy, I see that there are lots of ways to bring someone to court over and over again for the same matter.

  51. Federal crimes vs. state crimes being the biggie.

  52. Hmm, after reading the wikipedia on the Fifth Amendment and double jeopardy, I see that there are lots of ways to bring someone to court over and over again for the same matter.

    Yes, you just are not supposed to do it for the same offense.

    In Military Justice class, US Government class, Business Law, National Guard training, and several other classes it was made quite clear that the same act may create multiple offenses. Somehow, many people I have met, who were supposed to have the same background, seemed to have missed this bit of information and insisted on jabbering endlessly about it.

    One in particular claimed that when he worked on some military post they would “throw the UCMJ at soldiers so the civilians could not get them”. He was under the impression that if one robbed a convenience store (not an example he volunteered, but it was brought up) and all appropriate UCMJ actions were charged in the case, then the soldier could not be prosecuted by the civilian authorities.

    Sometimes life is like the intertubes . . .

  53. He was under the impression that if one robbed a convenience store (not an example he volunteered, but it was brought up) and all appropriate UCMJ actions were charged in the case, then the soldier could not be prosecuted by the civilian authorities.

    Not technically true, but if they throw the book at you under the UCMJ, you are far and away worse off than if the civilian authorities charge you. That’s why civilian jurisdictions are quite happy to let Uncle Sam prosecute his children when they go astray.

  54. T,

    That was one of the points that guy (and others) fail to understand about the locals letting the fed foot the bill. Also, frequently there are agreements between the JAG and the local authorities that one will prosecute this and the other that, etc. By no means is there any double-jeopardy issue involved.

  55. The problem to me seems to be that the damages are tagged as “punitive,” which suggests that the goal is to punish tortfeasors for behaving badly. The real goal is (or ought to be) to force them to internalize the cost of their wrongs that have gone undetected (and hence unlitigated). If I catch you dumping toxic waste in my garden, there’s a good chance you’ve gotten away with that behavior in other gardens in the past. Ideally, punitive damages would “punish” you for those–and only those–instances.

    Problems with this approach include 1) there’s usually no reliable metric for determining how many wrongs go undetected, and 2) juries are bad at math and good at moral outrage. Not to mention the fact that the individual plaintiff usually keeps the entire award (and the lawyer a hefty chunk of that), which creates perverse incentives.

    There’s a lot that’s wrong with our system of punitive damages, but there’s a sound market principle behind them.

  56. The real goal is (or ought to be) to force them to internalize the cost of their wrongs that have gone undetected (and hence unlitigated).

    Actually, that would make it even worse. Because you would be declaring your intention to punish for offenses that haven’t been proven.

    Don’t forget, a pure compensatory damage system would create a much greater incentive for wrongdoers to screw the poor. Granted, that incentive already exists, but it’d be much worse without punitive damages.

    Not if pain and suffering damages continue to be allowed.

    I find it telling that the two examples you immediately jumped for both involve things that shouldn’t be harms. Uh, yeah, duh – it’s hard to find a dollar figure to associate with discrimination harms. That should clue you in that discrimination harms are BS.

    It’s not very difficult to quantify the economic harm of actual harms. You know, where plaintiffs are actually substantially damaged in a way that requires restorative justice.

    It’s only necessary to give the civil courts the ability to move beyond “mere” restorative justice if your goal is to use the civil courts to accomplish policy ends that extend beyond “mere” justice. If you just give that goal up, the apparent problem disappears.

  57. Eliminating punitive damages without any other sort of liability reform tells big companies that crime pays — remember the Pinto?

    Also, this quote, “It did bring America into total and utter contempt around the world,” by the previously unknown Julian Lew, is simply laughable.

  58. Ahh “Stella and the Hot Coffee” is everyone’s favorite whipping boy for “egregious” lawsuits, but there’s no reason McDonald’s should be regularly doling out liquids that cause third-degree burns, especially after having been warned not to do so twice before.

  59. Eliminating punitive damages without any other sort of liability reform tells big companies that crime pays — remember the Pinto?

    The problem is that this just isn’t true.

    Allowing a gas tank design flaw saves you $500 in assembly costs.

    But if a 22 year old white male dies in your car and you are found liable, you can potentially face damages equal to 40 years of the guy’s earnings potential. If the girl in the seat next to him ends up needing 25 years of medical care, that’s pretty expensive too. And that’s before pain and suffering damages are considered.

    These things are hardly in balance and there is plenty of incentive to avoid these non-punitive damages if possible.

    The problem with Fight Club anecdote is that it’s stupid. There is no configuration for cars that will result in zero injuries. Choosing a configuration that avoids injuries to accident victim A will cause injuries to accident victim B. A cost/benefit analysis that seeks the lowest cost construction for a car relative to the number of injury claims the manufacturer is likely to face actually produces a positive outcome.

  60. there’s no reason McDonald’s should be regularly doling out liquids that cause third-degree burns

    You mean other than the fact that some drive-through customers like their coffee [and food] to still be hot when they actually reach their destination?

    Or other than the fact that the coffee brewing process requires that the water be hot enough to scald, and that this means that a fresh pot of coffee will usually still be hot enough to scald?

    And “warned” – by who? “I warned you not to use hot water to make coffee!” Go warn yourself.

  61. Fluffy,

    The brewing process does not “require” that you brew at a little under boiling. It’s a recommendation And there’s a difference between “hot water” and “water that causes third-degree burns in two seconds.”

    McDonald’s also shot itself in the foot by settling cases like this prior to Liebeck.

  62. I’d like to add that I don’t know what the answer is to outrageous punitive damages is, but I am sure that more laws and enshrining more power in the already too-powerful judiciary is not the answer.

  63. I am working my way through a real good book by Thane Rosenbaum called “The Myth of Moral Justice.” It Discusses at length the difference between justice, as handed down by the legal system, and the morally just outcome that plaintiffs are looking for.

  64. Since punitive damages are meant to discourage bad behavior in the future, awarding them to the plaintiffs and their attorneys makes little sense. And the government can’t be trusted to receive such awards. Therefore, all punitive damage awards should be given to me.

  65. Ahh “Stella and the Hot Coffee” is everyone’s favorite whipping boy for “egregious” lawsuits, but there’s no reason McDonald’s should be regularly doling out liquids that cause third-degree burns, especially after having been warned not to do so twice before.

    Except perhaps that coffee is best brewed at 195&degF – 205&degF, which will certainly cause 3rd degree burns.

  66. Modern punitive damages are a direct result of treating companies as if they were individuals.

    If we eliminated the limited liability corporation model, and held directors and stockholders directly for the companies they owned and direct, then we could eliminate punitive damages and pursue them in criminal court.

    At present there is “no one” to pursue when a company acts in a criminal manner. If only we stopped allowing directors/managers/stockholders to hide behind the modern corporate charter to avoid both criminal and capitalist (think the recent Bear bailout) responsibilities, we could do away with the punitive damages. Until at least after the criminal trail.

    Of course the Goldman family couldn’t sue OJ either, so there you go…

  67. I don’t think you can get punitive damages without compensatory damages can you (or nominal damages I guess)? They are “added to” to the compensatory damages, so in this sense they are a bit different than straight up punishment. And you usually only get them for acting in a way that hurts others but in a very morally culpable or really negligent way. We do want to deter and/or punish that kind of thing, don’t we?

    If they are going to get rid of punitive damages then they should certainly get rid of the “American rule” that denies attorney’s fees as part of the damages and adopt the “British rule” that allows them. It just makes sense given that attorneys do charge their clients for their time. But I imagine many here would certainly have a problem with that, since lawyers may actually (gasp) get their hands on money in exchange for their services in helping people harmed by others negligence and such…

    I’m always a bit wary when I see libertarians blasting the tort system. You guys don’t want government regulation. OK. Sounds nuts to me, but OK. But then you don’t like tort law? WTF? So how would you guys deal with people being harmed by other people’s negligence, or people not being able to enjoy their property because of another persons nuisance, or a person destroying another person’s property via pollution or libeling them into becoming the neighborhood public enemy? I should think a libertarian would love tort law as an alternative to government.

    But you know, a lot of my liberal friends dislike libertarianism because they think its just an ideology in the classical sense to justify vested interests getting their way. Reading some H&R posts (and I mean only some) you see this “well that guy deserves the bad result he got, let him quit his moaning” mentality that I submit represents the authoritarian better than the libertarian. I don’t think most people here willingly feel that way, but I’m curious as to how one thinks justice is going to be done if both government and tort law are booted out the window…

  68. Except perhaps that coffee is best brewed at 195&degF – 205&degF, which will certainly cause 3rd degree burns.

    Again, it’s a recommendation. Also, I just don’t see the wisdom in handing out near-boiling liquids through a drive-through windows to busy commuters.

    Especially after settling cases in the past and 700 complaints WRT McDonald’s coffer in particular.

  69. * whoops – coffee

  70. There is no configuration for cars that will result in zero injuries. Choosing a configuration that avoids injuries to accident victim A will cause injuries to accident victim B. A cost/benefit analysis that seeks the lowest cost construction for a car relative to the number of injury claims the manufacturer is likely to face actually produces a positive outcome.

    That’s not what he was talking about. He was talking about vehicle defects that themselves cause deaths, and which could be corrected without making the vehicle more dangerous. You can’t really deny that such defects do exist, since auto manufacturers often have to issue recalls to fix such defects.

  71. Standard libertarian disclaimer: of course it’s the responsibility of the buyer to ask whether the locks will get stuck in the locked position during a fire, the engine will accelerate when you hit the brakes, or any of the other hundred million or so things that can kill the occupants of a car are likely to happen.

  72. Since punitive damages are meant to discourage bad behavior in the future, awarding them to the plaintiffs and their attorneys makes little sense.

    It makes a lot of sense. Giving a few top attorneys huge financial incentives for winning punitive damages ensures that dangerous flaws in products and processes are detected early and place a hefty financial burden on companies that rush products to market without considering safety risks.

    If only actual damages were collectible, every person harmed would have to go to court until the costs mounted up to the point where the company decided to modify its process or product. Not only would more people get injured or killed, the courts would be more crowded, legal costs on both sides could well be higher, and it would be more difficult to find a high quality attorney when you get injured.

  73. If it’s been declared that nobody can prove that you committed a crime, then that should preclude the possibility that you should have to endure another trial regarding that same alleged crime. In my opinion.

    Wrongful death and murder are two different things.

  74. If we eliminated the limited liability corporation model, and held directors and stockholders directly for the companies they owned and direct, then we could eliminate punitive damages and pursue them in criminal court.

    This should only be done if the directors or stockholders were involved in management operations.

  75. That’s why civilian jurisdictions are quite happy to let Uncle Sam prosecute his children when they go astray.

    It also saves money.

  76. “it has not taken the next logical step of saying that when the goal is explicitly punishment rather than compensation, defendants should receive all the protections they would get in a criminal case”

    The reason for greater procedural safeguards in criminal courts vs. civil courts is not because the GOAL is punishment, but because the PUNISHMENT ITSELF in criminal courts is deprivation of liberty, whereas the punishment in civil courts is usually just financial (sometimes accompanied with injunctions, which have their own set of procedures). To equate the goals of these two very different punishments (jail vs. money) as meaning they are the same thing is just plain wrong.

    ps: I looked at your other two anti-punitive damages posts. In both you use two of the biggest punitive awards in history as basically straw men as to why punitive damages are so horrible. Both of the awards were subsequently cut massively.

  77. Wrongful death and murder are two different things.

    Yes, of course. Makes perfect sense to a lawyer. In the layman’s view you either murdered somebody or you didn’t. The decision in O.J’s civil case says that he kind of murdered Ron Goldman.

  78. Mike,

    The criminal law is supposed to be about the damage to the fabric of society as a whole, while “civil” actions are supposed to be about damages to individuals.

    It is easy to confuse the two for a couple of reasons:

    (i) police / prosecutors have fostered an attitude that criminal law is about doing justice for the crime victims personally. This is because the Mike Laursens of the world tend to be more sentimental about the crime victims and their shattered lives, than about the abstract damage to the fabric of society.

    and

    (ii) “civil” actions try to reduce all remedies to money. Dollars. Because they are privately funded, and the people who do the heavy lifting (that is, the civil lawyers) wants to get paid. This sort of works with OJ. The Goldmans get money. However, with most crime victims, the criminal has no assets and they basically get nothing, but whatever mitigation comes from watching the perp go to jail. Now we can imagine a system where, if you won the civil suit, then you would get to go taser the d00d who fondled your son for 15 minutes everyday. In fact, I think we should do that because that is the kind of remedy I think crime victims actually WANT in most cases. But, alas and alack, the crime victims, for whatever reason, get their compensation, if any, in dollars — so we can encourage them to look to the criminal suit to get their true “compensationm,” but really this sort of undermines the basic premise of the whole system, which is, to repeat:

    – criminal law about society as a whole;

    – civil law about individual grievances / harms / redress.

  79. The reason for greater procedural safeguards in criminal courts vs. civil courts is not because the GOAL is punishment, but because the PUNISHMENT ITSELF in criminal courts is deprivation of liberty, whereas the punishment in civil courts is usually just financial (sometimes accompanied with injunctions, which have their own set of procedures). To equate the goals of these two very different punishments (jail vs. money) as meaning they are the same thing is just plain wrong.

    None of this matters.

    There are two parties in dispute in civil court, and two parties only. The plaintiff and the defendant. Not other possible plaintiffs. Not “society”.

    The plaintiff is seeking compensation for harms they have suffered.

    If you award plaintiffs money that does not reflect the harm they have suffered [including pain and suffering awards] along with their costs, you have by definition created an unjust outcome.

    The entire theory of punitive damages is driven by the idea that mere justice for the plaintiff won’t get the defendant to change their behavior. But getting the defendant to change their behavior has nothing to do with the relationship between the plaintiff and the defendant, righting the wrong of which is the only just purpose of civil court.

  80. Re: the McDonald’s coffee case.

    I’m not sure its possible for a cup of coffee to cause actual third-degree burns, which require damage not only to the skin but also to underlying tissue (muscle, tendons, etc.). A good second-degree burn, sure. But I think you need live steam to cause a third-degree burn via scalding.

  81. re: the macdonalds coffee.

    I am much more concerned with their willingness to give a stimulant to a complete dumbass for a profit.

  82. I remember a case involving a French helicopter company that learned about a defective part that was subject to catastrophic failure. Their response was to recall all of the helicopters they had sold to the French military, but none of the ones that they sold to civilian companies. When a life-flight helicopter crashed in the US after the part failed, the company was sued and the French company stonewalled, since apparently in France they are pretty much immune from liability in such cases. The case went to trial and the jury awarded $400 million in punitives, which apparently stunned the company officials. Moral of the story–make sure you know what the rules are in the countries where you are doing business.

  83. A follow-up point for Fluffy: In the case I mentioned, one-half of the punitives went to the state where the plaintiffs resided, to go into a fund to benefit other uncompensated plaintiffs. I believe a dozen or so states now have similar laws, to deal with the problem of enriching a victim for the purpose of furthering a societal policy.

  84. “You mean other than the fact that some drive-through customers like their coffee [and food] to still be hot when they actually reach their destination?

    “Or other than the fact that the coffee brewing process requires that the water be hot enough to scald, and that this means that a fresh pot of coffee will usually still be hot enough to scald?

    “And “warned” – by who? “I warned you not to use hot water to make coffee!” Go warn yourself.”

    McDonald’s had hundreds of injuries from excessively hot coffee. They had a corporate policy of holding the coffee at 170F when the industry standard for hold (not brewing, holding) was 140F. 170F vs 140F is the difference between a scald in seconds and a mild first degree burn. McD saved some money and increased profit. They knew they were scalding people but, as corporate policy, put profit ahead of people.

    Stella was badly burned on the genitals — she was not driving by the way, and the car was not moving. She just wanted her medical bills paid, about $10k. McD stonewalled. At trial, their lawyer allowed as at her age Stella wasn’t really using her genitals for much anymore (I’m sure that impressed the jury!) The big award you saw in the headlines was reduced to about $400k and then reduced somemore in an undisclosed settlement that some people think was maybe $100k.

    McD changed their corporate policy, but they said it had nothing to do with the lawsuit. Their coffee is not so hot today. (Actually, I recall burning my tongue on their coffee — skin peeled off.)

    So they got off light, really, but the punitive damages worked and McD stopped scalding people.

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