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This chapter discusses a number of issues relating to damages awards in defamation law, specifically, the presumption that the claimant has suffered damage to his reputation, the availability of punitive damages for defamation, and the quantum of damages. Part B considers the purposes of damages awards in defamation cases. Part C outlines the legal position with regard to presumed damages and punitive damages. Part D argues that presumed and punitive damages are not necessary for the protection of reputation and, moreover, work against freedom of expression, at least in the context of public speech. Part E examines aspects of the law relating to the assessment of damages. Part F argues that on the same principle as applies to large damages awards, a disproportionately high level of litigation costs arguably constitutes a restriction on freedom of expression in certain circumstances, a point that is particularly acute in England where claimants often sue for defamation on a conditional fee basis. Part G concludes the discussion.

Even in the face of several findings, the question of punitive damages reform is not easy to answer in the abstract, above all because people disagree about the purpose of punitive damages awards. If the purpose of such awards is retribution—to impose a certain level of suffering on a defendant—the analysis would be different than if the purpose of such awards is to deter (optimally) future misconduct. Jury instructions typically run the two goals together; but it has been observed that the goal of retribution does not march hand in hand with the goal of deterrence. For the moment, the key point is that many people, including many lawyers and judges, are unsure about economic analysis of the deterrence issue, and any reform proposal that builds on economics will be controversial. But whatever one's views about the purpose of punitive damages awards, juries face extremely serious problems in producing sensible and coherent outcomes.

This chapter aims to uncover some of the sources of unpredictability in punitive damages awards by juries. The principal conclusion is that people have great difficulty in using the scale of dollars. Without guidance about what is meant by various “points” on the dollar scale, different juries choose different amounts, not necessarily because they disagree about anything of importance, but because the choice of one or another dollar award often amounts to a stab in the dark. More specifically, the chapter offers three central findings, based on a study of the judgments of 899 jury-eligible citizens.

Two questions should guide award determinations for procreation deprived, imposed, and confounded: First, how serious is a plaintiff’s reproductive loss? The answer goes to the nature and duration of that loss’s practical consequences for the plaintiff’s life. The second question asks how likely any future loss is to come about, and the extent to which its cause can be traced to a defendant’s misconduct, as opposed to some other factor for which the defendant isn’t to blame. The severity of reproductive injuries calls for objective inquiry into how a reasonable person in the plaintiff’s shoes would be affected. Permanent injuries tend to be more severe than temporary ones because they can be expected to cause greater disruption to major life activities like education, work, marriage, friendships, and emotional well-being. The question isn’t what plaintiffs would have done if they’d known that negligence would dash their efforts—it’s how much those injuries can be expected to impair their lives, from the perspective of their own ideals and circumstances. The causation element of this damages inquiry asks: What are the odds that plaintiffs would have suffered the complained-of reproductive outcome if it hadn’t been for the professional misconduct? Preexisting infertility, contraceptive user error, and genetic uncertainty can deprive, impose, or confound procreation just the same in the absence of any wrongdoing. Probabilistic recovery starts with the award total corresponding to the absolute loss in question, and reduces it by the extent to which the loss was caused by outside forces.