Huge punitive damage awards make headlines. Just last month, for example, an Oregon jury awarded almost $80 million in punitive damages to the family of a 40-year smoker who was found to be 50 percent responsible for his own death. In late 1997 a Louisiana jury ordered CSX to pay $3.4 billion for a railroad car fire although CSX merely owned the track and no one was seriously injured. In well-scripted reactions to such awards, plaintiffs lawyers praise the jury’s wisdom, defense lawyers vow to appeal its “preposterous” verdict, and insurers liken it to a Powerball lottery. We academics try to put it all in perspective.
The great irony is this: While punitive damages promise to fill an important gap in the law, they are essentially lawless. Some states have recently limited punitive awards, but elsewhere juries remain free to impose them pretty much as they like; appellate courts can review them but lack meaningful standards for doing so. Meanwhile, the punitive damages war, which continues to rage in state capitals, is now joined in Washington, D.C. The weaponry includes constitutional claims, shopworn myths, social science findings, horror stories on both sides, and thinly concealed self-interest gussied up as selfless idealism. Once we clear away the smoke and noise over punitive awards, we reveal them for what they are: demands for justice without law.
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