April 2, 2008

The Puzzle of Punitive Damages

Jacob Sullum at Reason has posted commentary on the recent New York Times article on punitive damages that we blogged about here. Sullum argues: "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."