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A Theory of Punitive Damages

Benjamin C. Zipursky

Fordham University School of Law

Texas Law Review, Forthcoming

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court's decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of "punitive." Insofar as they pertain to the state's goal of imposing a punishment upon a defendant who merits deterrence or retribution, they have a criminal aspect. Insofar as they pertain to the plaintiff's "right to be punitive," they have a civil aspect. Drawing upon the theory of civil recourse that the author has developed as a challenger to corrective justice theory, the article explains what a "right to be punitive" means. It then uses the recourse theory of punitive damages to support a rational reconstruction of the Supreme Court's constitutional jurisprudence of punitive damages. When a case can be understood as involving principally a plaintiff's right to be punitive, heightened constitutional scrutiny is not appropriate. However where, as in BMW v. Gore, the state is essentially imposing punishment, the excessiveness of a damages award is properly scrutinized under heightened constitutional standards.

Number of Pages in PDF File: 69

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Date posted: April 20, 2005  

Suggested Citation

Zipursky, Benjamin C., A Theory of Punitive Damages. Texas Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=705281

Contact Information

Benjamin C. Zipursky (Contact Author)
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
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