A Financial Economic Theory of Punitive Damages

Michigan Law Review, Vol. 111, 2012, pp. 1-56

U of Maryland Legal Studies Research Paper No. 2012-5

57 Pages Posted: 3 Dec 2011 Last revised: 22 Sep 2015

See all articles by Robert J. Rhee

Robert J. Rhee

University of Florida Levin College of Law

Date Written: 2012


This Article provides a financial economic analysis of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economic theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement dynamics, it shows that punitive damages beget problematic risk arbitrage opportunities, which systemically produce under- and over-valuation of cases. These effects yield inefficient pricing in the litigation system. Properly conceptualized and applied, punitive damages can mitigate risk arbitrage that skews actual results from the prescriptions of optimal liability and deterrence. The modern Supreme Court jurisprudence is flawed because it is overbroad. Single-digit multiplier caps underdeter defendants in most cases of ordinary liability because punitive damages do not sufficiently offset a defendant’s risk arbitrage opportunity gained from a lower litigation risk exposure. When liability is catastrophic, however, punitive damages overdeter defendants, even with a single-digit ratio limit, because they impart severe economic cost of financial distress in addition to the monetary cost of the judgment. These additional economic costs must be credited toward the calculus of cost internalization and optimal deterrence. Thus, a calibrated risk-based theory is needed to support legal limitations on punitive damages.

Keywords: punitive damages, exxon shipping, Campbell, Gore, bp, deepwater horizon, Williams, Baker

JEL Classification: K1, K13, K4, K40, K41

Suggested Citation

Rhee, Robert J., A Financial Economic Theory of Punitive Damages (2012). Michigan Law Review, Vol. 111, 2012, pp. 1-56, U of Maryland Legal Studies Research Paper No. 2012-5, Available at SSRN: https://ssrn.com/abstract=1967934 or http://dx.doi.org/10.2139/ssrn.1967934

Robert J. Rhee (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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