Marco Cappelletti, ‘Punitive Damages and the Public/Private Distinction: A Comparison Between the United States and Italy’

Abstract:
Punitive damages are among the most debated issues in private law theory and comparative law, as controversial judicial decisions and intense academic discussions demonstrate in the US and across Europe. Punitive damages, founded as they are on punishment and deterrence, put pressure on traditional taxonomies and invite further reflection on the interplay between public and private law. In this paper, I criticize the Italian rejection of punitive damages by offering a comparative analysis of the treatment punitive damages receive in the US and the Italian legal discourse, with a special focus on the relationship between this tort law remedy and the public/private distinction. I argue that, by offering ‘publicizing’ or ‘privatizing’ theories of punitive damages depending on whether they minimize or emphasize the public/private distinction, US jurists fail to accommodate punitive damages within domestic law because they do not perceive that public and private elements coexist throughout tort law. By resorting to the ‘nesting’ method, I show that US tort law can be organized around the public/private distinction and that punitive damages are one instance, among many, of public and private elements coexisting in the law of torts. I then use these findings to criticize the Italian rejection of punitive damages. I show that Italian tort law is a mixture of public and private elements and I debunk a series of ‘institutional’ objections raised by leading Italian scholars against the idea of adopting punitive damages in Italy. Finally, I analyze three situations in which the adoption of punitive damages would be beneficial to the Italian system.

Cappelletti, Marco, Punitive Damages and the Public/Private Distinction: A Comparison Between the United States and Italy (2015). Arizona Journal of International and Comparative Law, Vol 32, No 3, 2015.

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