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Civilizing Punitive Damages: Lessons from Restitution Loyola of Los Angeles Law Review Volume 36 Number 2 Symposia—Honor thy Mother & Father: Symposium on the Legal Aspects of Article 9 Elder Abuse and Second Remedies Forum: Restitution 1-1-2003 Civilizing Punitive Damages: Lessons from Restitution Gail Heriot Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Gail Heriot, Civilizing Punitive Damages: Lessons from Restitution, 36 Loy. L.A. L. Rev. 869 (2003). Available at: https://digitalcommons.lmu.edu/llr/vol36/iss2/9 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. CIVILIZING PUNITIVE DAMAGES: LESSONS FROM RESTITUTION Gail Heriot* I. INTRODUCTION Some courts have been very tough on punitive damages. "The idea is wrong," said the Supreme Court of New Hampshire in 1872 calling it "a monstrous heresy."1 "It is an unsightly and an unhealthy excrescence," the court continued, "deforming the symmetry of the body of the law."2 These were strong words-strong enough to make some readers wince with embarrassment-but perhaps the good justices of the Granite State had a point. In our legal system, a rather sharp (if not always perfect) distinction is drawn between criminal law, which3 emphasizes punishment, and civil law, which stresses compensation. Even school children know something about the distinction between 4 being sued and being prosecuted for a crime. Punitive damages are a significant anomaly in a system with many anomalies. In awarding them, courts make no pretense of compensatory purpose; punitive damages are awarded, just as the * Professor of Law, University of San Diego. I would like to thank Michael Kelly, Emily Sherwin, Christopher Wonnell, and the participants in Washington & Lee University School of Law's Forum on Remedies for helpful comments and insights on this Article and on the subject of remedies generally. 1. Fay v. Parker, 53 N.H. 342, 382 (1873); see also 2 SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE 240 n.2 (16th ed. 1899). 2. Fay, 53 N.H. at 382. 3. In general, an outside observer might say that the criminal system is for punishing wrongdoers who breach the special body of law designated as "criminal" and the civil system is for compensating the victims of a broader range of wrongdoing. 4. Among the differences is the level of procedural safeguard afforded to defendants. On the criminal side, such safeguards abound. On the civil side, however, the playing field between plaintiffs and defendants tends to be more level. See Gail Heriot, The PracticalRole of Harm in the CriminalLaw and the Law of Tort, 5 J. CONTEMP. LEGAL ISSUES 145, 145 (1994). LOYOLA OFLOS ANGELES LA WREVIEW [Vol. 36:869 name suggests, as punishment-something we ordinarily associate with the criminal law. Courts have been reluctant to find constitutional infirmities in the concept of punitive damages.5 Perhaps they are right to be so; punitive damages arguably have a long pedigree, and that ought to count for something. Not every legal practice that is constitutional, however, is also good policy. The issue remains whether their awkward fit into the legal system really does make them "an unhealthy excrescence" on the law and what, if anything, 6 should be done to reform them. This Article will suggest that punitive damages do indeed present special risks of injustice not present in ordinary civil or criminal cases. While calling punitive damages a "monstrous heresy" and an "unhealthy excrescence" may be amusingly over-the- top, there are reasons to give some thought to how to create a legal system that could "civilize" them (in the sense of making them a better fit into the civil law). It will further suggest that among the extra-compensatory remedies that deserve consideration as an alternative to punitive damages under certain circumstances is restitution. If restitution were substituted for punitive damages, it would not result in a perfect or even near-perfect set of incentives for plaintiffs and defendants to live under, but it might have advantages over the current practice. 5. See, e.g., TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443 (1993); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991); Browning Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989); see also Gail Heriot, An Essay on the Civil-Criminal Distinction with Special Reference to Punitive Damages, 7 J. CONTEMP. LEGAL ISSUES 43 (1996). 6. An interesting and worthwhile literature has developed over the last few decades on punitive damages, which includes: Kenneth Abraham & John Jeffries, Punitive Damages and the Rule of Law: The Role of Defendant's Wealth, 18 J. LEGAL STUD. 415 (1989); Robert Cooter, Economic Analysis of Punitive Damages, 56 S. CAL. L. REV. 79 (1982); Dorsey Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S. CAL. L. REV. 1 (1982); David Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U. CHI. L. REV. 1 (1982); David Owen, Punitive Damages in Products Liability Litigation, 74 MICH. L. REV. 1258 (1976); George Priest, Punitive Damages and Enterprise Liability, 56 S. CAL. L. REV. 123 (1982); A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 HARv. L. REV. 869 (1998); Symposium, Punitive Damages, 40 ALA. L. REV. 705 (1989). Winter 20031 CIVILIZING PUNITIVE DAMAGES II. THE PROBLEM WITH PUNITIVE DAMAGES Putting one's finger on exactly why many people are troubled by punitive damages is tricky. It cannot be that punishment is an impermissible purpose in the civil law-at least in the broadest sense of the term "punishment." Every time a defendant is found liable and ordered to pay compensatory damages to a plaintiff, part of the motivation for doing so is punishment.7 Otherwise, why order the in a better financial position defendant to pay as opposed8 to someone to offer compensation. The argument for holding the person who caused the harm liable would be pretty weak if the only justification for tort law were compensation or loss spreading. Not all wrongdoers can afford to cover the losses they have inflicted on others. Many, as their chagrined victims learn, are completely judgment-proof; others may be more financially strapped than their victims. An insurance pool, whether financed by taxpayers, victims, or wrongdoers, would be a better method of compensating victims, since it could ensure that all enough to be injured victims are compensated, not just those lucky 9 by someone with the resources to pay damages. Yet almost everyone agrees that such a system would not be satisfying. The wrong person would be forced to pay and the person who should have paid would go... well.., unpunished. Under the that punishment is an circumstances, it is hard to argue10 impermissible purpose of the civil law. In the ordinary civil case, however, the twin purposes of compensation and punishment are bound together-and that is crucial. Plaintiff is compensated only to the extent that defendant is punished, and defendant is punished only to the extent that plaintiff is compensated. In addition (and perhaps consequently), the rhetoric of punishment is downplayed. Frequently, as in the case of strict liability torts, no explicit moral condemnation is made at all. Forcing the defendant to pay compensation is thus punishment only in a 7. See Kenneth B. Noble, In Civil Court, A Second Chance at Retribution, N.Y. TIMES, Oct. 22, 1995, § 3-4, at 5 (discussing the O.J. Simpson civil cases). 8. For an attempt to reconcile deterrence and corrective justice approaches in tort law, see Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 TEX. L. REV. 1801 (1997). 9. See Heriot, supra note 4, at 151. 10. See id. 872 LOYOLA OF LOS ANGELES LAWREVIEW [Vol. 36:869 limited sense: Defendant is made worse off by having to pay damages, but his conduct is not explicitly prohibited or even condemned. He is simply reminded when he writes out his check to plaintiff that perhaps he should reconsider his behavior in the future. 11 The civil law, particularly the law of tort, is otherwise remarkably vague and amorphous. In contrast to the criminal law, no attempt is made to specify in writing those acts which can give rise to liability or to make such a writing broadly available to the public. Potential tort defendants are thus not forewarned of the range of prohibitions on inappropriate conduct. This vagueness allows flexibility: tort law can adjust itself immediately to whatever new-fangled acts of negligence human folly can dream up. It is also extremely worrisome, however, for as Lord Camden once wrote, "discretion... is the law of tyrants."'12 In the case of a negligence tort, twelve randomly selected jurors decide whether they regard the defendant's conduct as reasonable or not. These twelve jurors may be representative of community sentiment or they may not be.13 They may be motivated by an honest desire to apply the law or they may not be. In any event, they are accountable to no one; they are not even bound, as judges are in deciding common law issues, to decide the issue before them in harmony with previous cases. This would be intolerable but for tort law's compensatory nature. It does not permit anyone to be punished who has not actually caused harm to a victim.
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