Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability

Posted: 9 Apr 2011 Last revised: 28 Apr 2013

Andrew F. Popper

American University, Washington College of Law

Date Written: April 7, 2011

Abstract

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 justice

Suggested Citation

Popper, Andrew F., Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability (April 7, 2011). DePaul Law Review, Forthcoming; American University, WCL Research Paper No. 2011-08. Available at SSRN: https://ssrn.com/abstract=1805134

Andrew F. Popper (Contact Author)

American University, Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4233 (Phone)

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