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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.

This chapter focuses on a debate that has recently been ignited in England as to whether there may be a role for punitive damages for breach of contract. Should there be a desire to increase the protection afforded to the performance interest by English law, might punitive damages be the answer? It is suggested in this chapter that English law should proceed cautiously. Absent wider reform, the adoption of punitive damages may lead to incoherencies in a system which has hitherto shown reluctance to consider contractual default as being reprehensible. Legal intervention by way of regulation in particular contexts may be more appropriate than punitive damages. Comparative analysis of French law is instructive. In France, the advent of a punitive damages regime is a distinct possibility following proposals of the Catala reform project. In contrast with English law, by reason of the strong emphasis on performance in French remedies for breach of contract, there would be no incongruity in French courts making punitive awards. This contrast is relied upon to reinforce the argument that the introduction of punitive awards into English law would risk creating incoherency and that caution should be exercised before any such reform is embarked upon.

This chapter discusses explicit proportionality principles in the Supreme Court's constitutional jurisprudence and also reviews the internal inconsistencies in the Court's analysis. The first section focuses on proportionality and punitive damages, beginning with a discussion of punitive damages prior to BMW and ending with three guideposts of proportionality from BMW and State Farm: (1) reprehensibility of defendant's conduct, (2) proportionality to actual or potential harm, and (3) necessity to achieve adequate deterrence. The next section discusses the rough proportionality used to evaluate land-use permit conditions. The subsequent two sections review attorney's fees awards in civil rights cases and the use of proportionality in assessing the validity of congressional abrogation of state sovereignty under the Fourteenth Amendment. The final section discusses the role of proportionality to detect violations of voting rights and equal protection, specifically in relation to public school desegregation, proportional representation among voting districts, and vote dilution.

This chapter describes categories of damages such as moral damage, aggravated damages, exemplary damages, vindictive damages, and punitive damages. It focuses on the possible punitive function of damages on the question whether punitive damages are a distinct category. It also explores the existing or potential link between punitive damages and international crimes, in an attempt to demonstrate the usefulness of such a category of damages as a possible consequence of state crimes.

Most human rights tribunals have either a textual or inherent basis for enhancing damage awards to deter and punish wrongdoing. Fundamentally, the question of punitive or exemplary damages is one of utility. Several justifications can be given for their use: punishment, deterrence, preservation of the peace, inducement for private law enforcement, or compensation for otherwise uncompensated losses and payment of costs and fees. In cases of consistent non-prosecution of individual perpetrators, monetary awards may be indicated in order to express disapproval of the actions of the government, and to repair the full dignitary losses sustained by private individuals. The purpose is to reprove a state for its conduct and deter it from similar actions in the future.

Where specific relief is sought, such as an injunction, this is not accurately described as a remedy for a tort, as the court is enforcing the primary right. Similarly, self help ‘remedies’ are not concerned with secondary obligations, but rather with privileges created by the conflict of rights. Drawing on many different examples from conversion, libel, negligence, and false imprisonment, this chapter demonstrates the importance of the distinction between damages in substitute for the right itself, and those awarded to compensate for losses consequent upon the right infringement. Gain-based damages awarded as restitution for wrongs are shown to have either no or very little place within the common law. The best interpretation of punitive damages in order to overcome the common objections to such awards is that they are similarly not awarded to make good any loss, nor in order to deter wrongdoing but are rather a vindication of the claimant's right where the violation is particularly egregious.

This chapter presents a summary of psychological issues underlying claims for and awards of money damages. It takes a psychological perspective on plaintiffs who are seeking damages, assessing the symbolic significance of money damages and the ability of money damages to redress the imbalance between the liable defendant and the injured plaintiff. It also analyzes the psychology of fact finding, drawing on psychological research to show how judges and juries determine appropriate compensatory and punitive damage amounts.

This chapter discusses whether courts are justified in requiring parties who breach their contracts to disgorge their gains or to be subject to punitive damages. Because remedies are the continuation of rights, one must first identify the nature of the right that contract law gives the plaintiff. Accordingly, it presents a contrast between the function that Fuller and Perdue assign to the contract remedy and Kant's now largely forgotten treatment of contract right. The Kantian account casts light on the inaptness of requiring the disgorgement of gains from contract breach. Turning to punitive damages, the chapter outlines how corrective justice and punishment coexist and are differentiated in a legal order based on rights. Finally, it discusses the difficulties that emerge from the elaborate but ultimately unsatisfying attempt by the Supreme Court of Canada to work out a coherent treatment of punitive damages for contract breach.

Many criticisms of juries concentrate on civil juries, alleging that they award plaintiffs excessive and unpredictable punitive damages. Although very large punitive damage awards exist, juries rarely award punitive damages. And as with compensatory damages, it is hard to say what makes a punitive damage award “excessive” or “unpredictable.” This chapter reviews research on juries’ punitive damage awards as a function of a number of different variables (e.g., case type, awards over time, and substantive and procedural trial variables). It then discusses various reforms designed to lower or systematize punitive damages. The chapter concludes that although punishment by civil juries is not perfect, for the most part, it is neither excessive nor unpredictable. And as with compensatory damages reform, reforms targeting punitive awards can be ineffective or counterproductive.

The punitive damages approach advocated by Polinsky and Shavell focuses principally on the observation that dates back to Jeremy Bentham that punishment levels should be related to the reciprocal of the probability of detection. For example, if the chance of detection is 50%, then the total penalty must be twice the value of the harm in order to create the proper incentives for deterrence on an expected value basis. This chapter tests whether jury-eligible citizens can and will, in fact, apply the Polinsky-Shavell jury instructions. A sample of jury-eligible citizens considered a series of different case scenarios in which there was some nonzero probability that the environmental transgression would not be detected. They were then given the Polinsky-Shavell punitive damages instructions and asked to assess punitive damages for their case. This exercise consequently provides a quite direct test of whether giving jurors an explicit formula for punitive damages will rationalize the punitive damages–setting process.

In addition to compensation or restitution for material damage, supplemental compensation is necessary to put the victim of an unlawful act fully in the hypothetical position that would exist save for the wrongful act. Supplemental compensation in this book refers to compensation for moral damage (including legal damage), interest, damage caused as a result of currency fluctuations, and arbitration costs. These heads of damages are grouped together as supplemental damages as none of them directly relates to the main material damage done to the investment but may be an integral part of full compensation. This chapter discusses the principles relating to each of these heads of supplemental damage, along with their use in investment treaty arbitration. Punitive damages and the currency of compensation in investment treaty arbitration are also discussed.

This chapter shifts from doctrine and methodology to actual practice and substantive outcomes. It surveys the tort conflicts cases decided by American courts in the 50-plus years since the abandonment of the lex loci delicti rule and identifies the emerging decisional trends. It classifies the cases into fact-law patterns (such as common-domicile cases, split-domicile cases, and cross-border cases), depending on the contacts of the involved states and the content of their laws, examines the results courts reached in each pattern regardless of choice-of-law methodology, and then recasts these results into descriptive rules or predictions of future outcomes. The chapter begins with the distinction between tort rules designed primarily to regulate conduct, and those designed primarily to allocate or distribute between parties the losses caused by admittedly tortious conduct. It then discusses loss-distribution conflicts, which are more numerous, and concludes with conduct-regulation conflicts, including those involving punitive damages.

Over the past two decades, the United States has experienced a dramatic increase in the incidence and magnitude of punitive damages verdicts rendered by juries in civil litigation. The magnitude of punitive damages verdicts appears to vary substantially across juries. But this judgment, too, is problematic. In some sense, no two cases are alike. Thus, there is an inherent difficulty in evaluating one verdict against another and, especially, in evaluating these verdicts from the standpoint of a jury or judge, since no outsider can exactly put himself or herself in a similar position. This chapter provides a short summary of how the question of punitive damages is presented to a jury, in order to set the stage for the experimental studies themselves.

This chapter discusses the use of ethical argument by the Court. It examines the arguable employment of such methodology under the Cruel and Unusual Punishment Clause of the Eighth Amendment focusing on the death penalty and length of sentence cases. It then considers the use of this type of argument through substantive due process by examining punitive damage and the right to privacy cases. Finally, it discusses the concept of ethical argument in the reapportionment decisions.

This chapter examines the normative arguments for common law punitive damages. It focuses on one normative argument in particular, that punitive damages can be justified because they deter inefficient conduct. The method by which punitive damages are determined is very different from punishment in public law. Two significant differences flow from this fact. First, the technical resources necessary to achieve deterrence are unavailable in common law punitive damages, so it is highly unlikely that punitive damages could achieve their putative goal. Second, unlike deterrence-based punishment in public law that has the same problem (such as capital punishment) the common law of punitive damages eschews any appeal to political legitimacy to justify its choice of punishments. This chapter concludes that the justification of common law punitive damages should begin with a theory that focuses on their legitimacy, and not their efficacy as engines of deterrence.

Many instances of juror responses to what could be considered routine corporate product-safety decision making raise questions about how jurors think about punitive damages awards in products liability cases. Trading off risk against cost is a common experience. To decide which risks to bear and which to avoid, we can attempt to get a sense of how consequential the risks are and whether there is some offsetting advantage that makes bearing the risk reasonable. In designing their products, corporations also must make similar judgments regarding the character of their products. To do so, they try to anticipate how their products will be used and what risks will be incurred in that usage. Another factor they must consider is consumer preferences, especially how much customers value safety as opposed to other product attributes, including its price. The formal mechanism for making safety trade-off judgments is a risk analysis that outlines the costs and benefits of different safety options. Such an analysis usually proceeds in a series of steps.

This chapter reviews some major empirical findings and extracts some essential principles and themes on the behavior of jurors, juries, and judges making punitive damages decisions. The empirical findings depict the juror as a decision maker whose good intentions, natural abilities, and adaptive strategies are overwhelmed by the demands of the punitive damages decision task. Consequently, juror decisions are systematic and predictable when judging the relative moral reprehensibility of a defendant's conduct, but decisions concerning the absolute distinction between liable and not liable and assessments of dollar awards are unreliable and unpredictable. The chapter summarizes the major empirical findings into three substantive categories: setting dollar awards, judging recklessness and liability, and reasoning about risk and uncertainty.

‘Punitive damages’ have long been controversially discussed in national as well as in international law. This is not different for the European Court of Human Rights. Until now the Court has considered it officially inappropriate. One would thus expect that punitive damages are not used by the Court. But is this really the case? This chapter finds that the Court has been at the forefront of an international trend, using just satisfaction to prevent further violations of human rights and punish wrongdoing governments in several instances. The purpose of this chapter is, first, to argue that the Court uses punitive damages implicitly and, second, that there are well-established social-science reasons why punitive damages should be used. The idea of ‘punitive damages’ is strongly connected to the effectuation of law. Wherever the enforcement might be weak, ‘punitive damages’ can set the correct incentives for following the law.

This chapter reviews the decisions of American courts in resolving product liability conflicts over the last 25 years. It classifies cases into fact-law patterns depending on the parties’ contacts with the involved states and the content of their respective laws, and examines the results courts reached in each pattern, regardless of choice-of-law methodology. The chapter concludes that, unlike in other tort conflicts, decisional patterns in product-liability conflicts are not sufficiently uniform to be recast into predictive rules, and that a court’s choice is more likely to be based on the quantity of the involved states’ contacts rather than on other factors, including methodology.