Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability
Andrew F. Popper
American University, Washington College of Law
April 7, 2011
DePaul Law Review, Forthcoming
American University, WCL Research Paper No. 2011-08
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
Keywords: caps, deterrence, non-economic loss, punitive damages, corrective justiceAccepted Paper Series
Date posted: April 9, 2011 ; Last revised: April 28, 2013
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