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Justice Holmes’s Bad Man and the Depleted Purposes of Punitive Damages

50 Pages Posted: 6 Aug 2012 Last revised: 6 Mar 2014

Jill Wieber Lens

Baylor University - Law School

Date Written: August 2, 2012


Justice Holmes introduced his bad man as a tool to separate law and morality. The bad man is not affected by morality, and sees a tort duty only as an obligation to pay damages. The bad man does not consider any chance of escaping liability, so he sees that obligation as mandatory. Applied hypothetically to punitive damages, the bad man would not appreciate the morality basis for imposing punitive damages or the moral condemnation and stigma that traditionally results from that imposition. Instead, he sees punitive damages as just another check that he will be required to write.

In Exxon Shipping Co. v. Baker, the Supreme Court made this hypothetical application a reality. Acting within its common law authority, the Court explained its ideal system for imposing punitive damages, cited Justice Holmes’s bad man, and necessarily depleted the traditional common law punishment and deterrence purposes of punitive damages. No longer is that punishment purpose based in morality, and the deterrence purpose lacks any specific deterrence goal. The Court’s depletion of the damages’ common law purposes of punitive damages undermines the damages from a policy basis. But more importantly, the depletion undermines the damages’ constitutionality as that constitutionality depends on the damages’ traditional common law purposes.

Keywords: punitive damages, punishment, deterrence, Exxon Shipping Co. v. Baker

Suggested Citation

Lens, Jill Wieber, Justice Holmes’s Bad Man and the Depleted Purposes of Punitive Damages (August 2, 2012). Kentucky Law Journal, Vol. 101, No. 789, 2013. Available at SSRN: or

Jill Wieber Lens (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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