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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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