The Republican Model and Punitive Damages

Abstract:     
Fueled by complaints of outlandish punitive damage awards and a United States Supreme Court intent on bringing constitutional order to this corner of torts damages, a considerable literation has emerged. Commentators have examined the bases for the award of punitive damages and have applied empirical analysis to probe the legitimacy of popular criticism and the extent to which punitive damages fulfill the goals assigned to them. In this essay, I propose that punitive damages should be conceptualized in light of a republican theory of tort law with the jury as its central institution. This is ironic, since influential commentators and the courts have viewed the jury as a hindrance to a rational body of law. My recommendation is that the jury needs to be strengthened in providing it with the vitality to perform its republican role.

Number of Pages in PDF File: 29

Accepted Paper Series