In Defense of Deterrence

24 Pages Posted: 18 Jan 2012  

Andrew F. Popper

American University, Washington College of Law

Date Written: January 17, 2012

Abstract

The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation — the tort system itself — has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others.

Keywords: tort law, deterrence

Suggested Citation

Popper, Andrew F., In Defense of Deterrence (January 17, 2012). Albany Law Review, Vol. 75, No. 1, p. 101, 2012; American University, WCL Research Paper No. 2012-05. Available at SSRN: https://ssrn.com/abstract=1987134

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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