Resilience, Retribution, and Punitive Damages

49 Pages Posted: 4 Jun 2021

See all articles by Erik Encarnacion

Erik Encarnacion

The University of Texas School of Law

Date Written: June 3, 2021


Courts routinely claim that punitive damages aim to punish and deter wrongdoers. But these goals focus exclusively on regulating wrongdoers. As a result, they fail to justify transferring punitive damages awards to victims rather than, for example, state treasuries. After all, punitive damages do not compensate plaintiffs for losses; they are extra-compensatory by definition. This fact renders punitive damages vulnerable to the attack that they represent unjustified plaintiff windfalls.

This Article advances a new theory of punitive damages that builds on an ideal of resilience, which encourages victims emerge better than before they have been wronged. This ideal allows us to reconceptualize punitive damages as a form of retributive justice according to which plaintiffs are empowered to demand that defendants satisfy their resilience interests. Doing so enables victims to realize a narrative according to which they made themselves better off by securing justice against their wrongdoers, e.g., by transforming their malefactors into benefactors. Satisfying those interests also improves the value of the retributive justice meted out, ensuring that it is constructive rather than merely destructive. Punitive damages practice thus plays a role in ensuring that individuals may realize this ideal of “retributive resilience.”

This theory, which is the first attempt to use a normative ideal of resilience to understand private law remedies, also argues that officials should distinguish between genuine punitive damages—or “retributive damages”—and “deterrence damages.” Retributive damages rightly belong to plaintiffs. They are not windfalls. Deterrence damages, by contrast, are awarded solely for the purpose of deterring especially egregious anti-social conduct. These remain windfalls that in principle need not be allocated to the plaintiff, and may be siphoned off through mechanisms like split-recovery statutes. But the notion that all punitive damages represent windfalls should be put to rest.

Keywords: punitive damages, remedies, torts, resilience, philosophy of law

Suggested Citation

Encarnacion, Erik, Resilience, Retribution, and Punitive Damages (June 3, 2021). Texas Law Review, Vol. 100, Available at SSRN:

Erik Encarnacion (Contact Author)

The University of Texas School of Law ( email )

Austin, TX
United States

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