‘A New Retributive Justification for Punitive Damages’

Eric Encarnacion, ‘Resilience, Retribution, and Punitive Damages’, 100 Texas Law Review (forthcoming, 2021), available at SSRN. Most American states permit the award of extra-compensatory punitive damages to tort plaintiffs if the defendant’s conduct was especially culpable. The conventional rationales for this practice are the value of punishing such conduct and the special need to deter it. Yet these rationales are focused entirely on the defendant: they explain why a defendant should pay more than compensatory damages but do not explain why that additional punitive award should be transferred to the plaintiff. And indeed, many states, under ‘split recovery’ schemes, require that a specified proportion of a punitive damage award be paid to the state, not to the plaintiff. But critics of punitive damage awards are not satisfied by this response: they believe that transferring any nontrivial portion of a large punitive damage award to a plaintiff gives that plaintiff an unjust and undeserved ‘windfall’ … (more)

[Kenneth W Simons, JOTWELL, 13 July]

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