This essay, which was written for a book on whether European tort law ought to incorporate punitive damages, asks whether the United States Supreme Court has a “theory” of punitive damages and if so, how well does it explain and justify punitive damages. The essay first reviews the Supreme Court’s various constitutional theories of punitive damages, that is, whether and how state punitive damages awards are limited by the Due Process Clause. It then looks at the Supreme Court’s efforts to articulate a theory of punitive damages under federal common law in Exxon Shipping Co. v. Baker. It concludes that the theory expressed in Exxon Shipping overstated the need for its doctrine to provide defendants (and plaintiffs) with predictable awards and ignored (or rejected without engaging) arguments for punitive damages provided by efficient deterrence theorists in the academy.
Sebok, Anthony J, The U.S. Supreme Court’s Theory of Common Law Punitive Damages: An Inauspicious Start (July 9, 2012), in The Power Of Punitive Damages: Is Europe Missing Out?, (Lotte Meurkens and Emily Nordin, eds., Intersentia Press, 2012); Cardozo Legal Studies Research Paper No. 369.