The rise of modern mass tort litigation in the U.S. has transformed punitive damages into something of a “hot button” issue. Since the size of punitive damage awards grew so dramatically in the past half century, this private law remedy has begun to involve issues of constitutional rights that traditionally pertained to criminal proceedings. This has created a risky interplay between tort and criminal law, and courts have thus been trying to find ways to properly manage punitive damage awards. The once rapidly expanding universe of punitive damages is therefore beginning to contract. There remain, however, very serious difficulties. Despite the effort to guard against excessive punitive damage awards through the use of certain “guideposts”, courts continue to struggle with this remedy. This article examines the concept and historical arc of punitive damages, and suggests that deep problems persist because the notion of punishing and/or deterring defendants by ordering them to more than fully compensate plaintiffs, creates intractable dilemmas.
Daniel M. Braun. 2013. “The Risky Interplay of Tort and Criminal Law: Punitive Damages“, ExpressO.