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92 Iowa L. Rev. 957 (2006-2007)
Punitive Damages: From Myth to Theory

handle is hein.journals/ilr92 and id is 967 raw text is: Punitive Damages: From Myth to Theory AnthonyJ Sebok* ABSTRACT: In this Article, I argue that the current problem with punitive damages in the United States is not, as popularly is believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis-courts now lack an adequate theory to explain to themselves, lawyers, and litigants the purpose of punitive damages. The argument contains the following steps. First, I illustrate that the dominant rationale in recent years for punitive damages has been efficient deterrence. Second, I argue that the current practice of punitive damages is ill-suited to the achievement of efficient deterrence, which explains why it has been so easy for critics of the tort system to characterize punitive damages as a failed branch of civil litigation. Third, I argue that the remaining signficant nondeterrence theories of punitive damages-including the theory developed by the United States Supreme Court in a series of recent decisions-fail to provide an adequate theory of punitive damages. Fourth, I argue that the point of punitive damages can be understood as a form of private retribution, and I use the history of punitive damages in England and the United States as well as the work of the philosopher Jean Hampton to illustrate my point. Fifth, I argue that the theory of punitive damages as 'private retribution -which sounds odd to the modern ear-fits surprisingly well with modern theories of the tort system that view tort law as a system of civil recourse for citizens who have suffered wrongs in private law. * J.D., Yale Law School, 1991; Ph.D., Princeton University, 1993. Centennial Professor of Law and Associate Dean for Research, Brooklyn Law School. Many thanks to Ted Eisenberg, Mark Geistfeld, John Goldberg, Mike Green, Myriam Gilles, Dan Markel, Robert Rabin, Gideon Rosen, David Rosenberg, Cathy Sharkey, Larry Solan, Stephen Sugarman, Ben Zipursky, and the participants in faculty workshops at Brooklyn Law School, Fordham Law School, U.N.C. Law School, N.Y.U. School of Law, Princeton University, Rutgers University School of Law-Camden, The University of Texas School of Law, and the University of Toronto. This Article was written with the support of the Summer Research Grant Program of Brooklyn Law School, as well as the Program in Law and Public Affairs, Princeton University, where I was a Fellow in 2005-2006. My research assistants, Ningur Akoglu, BLS '05, Simon Lee, BLS '06, and Ryan Micallef, BLS '06, provided invaluable assistance. All mistakes are my responsibility.

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