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31 U. Mich. J.L. Reform 289 (1997-1998)
Crimtorts as Corporate Just Deserts

handle is hein.journals/umijlr31 and id is 301 raw text is: CRIMTORTS AS CORPORATE JUST DESERTSt Thomas Koenig* and Michael Rustad** Just as Grant Gilmore described contorts that lie on the borderline between contract and tort law, the authors coin the term crimtort to identify the expanding common ground between criminal and tort law. Although the concept of crimtort can be broadly applied to many areas of the law, this Article focuses on the primary crimtort rem- edy-punitive damages. The deterrent power of punitive damages lies in the wealth-calibration of the defendant's punishment. For corpora- tions this means that punitive damages will reflect the firm's net income or net worth. The theoretical danger is that juries will abuse wealth by redistributing corporate assets in disregard of the purposes of civil punishment. 7b support their argument that wealth is not be- ing widely misused, the authors present an empirical study of a decade of crimtort cases in which federal appeals courts upheld puni- tive damages of $1 million or more. However, even though punitive damage verdicts are generally proportional to corporate wealth, indi- vidual cases such as Exxon Valdez raise troubling due process issues. The authors propose instituting middle-range procedural protection for crimtort defendants in order to accommodate the quasi-criminal objectives of this legal hybrid. Copyright © 1998 by Thomas Koenig and Michael Rustad. t The phrase just desert is taken from the eighteenth-century German phi- losopher Immanuel Kant, who articulated the retributive theory of justice. IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 99-107 (1965 ed.); see also Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453, 454 (1997) (summarizing Immanuel Kant's theory of just deserts' which held that punishment should be proportionate to their internal wickedness). This Article benefited from the excellent research assistance and editorial suggestions of Waino Kangas, Chryss Knowles, Kristin Kraeger, Theresa Mrusick-Meyer, Jessie Nice, and Professor Marie Natoli. Our colleagues Anthony Polito and Eric Blumenson provided valuable materi- als. Discussions at the National Conference on Punitive Damages held in October 1996 at the University of Wisconsin Law School played an important role in formu- lating our ideas. * Professor of Sociology and of Law, Policy and Society, Northeastern Univer- sity. B.A- 1971, University of California at Santa Cruz; M.A. 1973, University of California at Santa Barbara; Ph.D. 1979, University of California at Santa Barbara. ** Director of High Technology Law Program and Professor of Law, Suffolk Uni- versity Law School. B.A. 1971, University of North Dakota; M.A. 1973, University of Maryland; Ph.D. 1981, Boston College; J.D. 1984, Suffolk University Law School; LL.M. 1986, Harvard University Law School. 289

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