CHALLENGING THE CONSTITUTIONALITY OF PUNITIVE DAMAGES: PUTTING RULES OF REASON ON AN UNBOUNDED LEGAL REMEDY

• Author: VICTOR E. SCHWARTZ,LIBERTY MAGARIAN
• Published date: 01 September 1990
• Date: 01 September 1990
• DOI: http://doi.org/10.1111/j.1744-1714.1990.tb00836.x

CHALLENGING THE CONSTITUTIONALITY

OF

PUNITIVE DAMAGES: PUTTING RULES

OF

REASON ON AN UNBOUNDED LEGAL REMEDY

*VICTOR

E.

SCHWARTZ

**LIBERTY MAGARIAN

INTRODUCTION

Punitive damages are a virtually unique part of English and Amer-

ican law.' They

are

a

penal "add on" to compensatory damages. They

are intended to punish the defendant, to deter him from future

wrongdoing, and also to deter others from engaging in similar wrong-

ful conduct. Properly applied, they can

ferret

out and sanction socially

undesirable conduct that prosecutors may miss. In their origins,

punitive damages were a helpful auxiliary to state criminal law? In

seventeenth century England, the criminal law system often lacked

the resources to prosecute ordinary assaults and batteries.s Punitive

damages developed to impose

a

public sanction against

such

cond~ct.~

*

Partner, Crowell

&

Moring, Washington,

D.C.

**

Associate, Crowell

&

Moring, Washington,

D.C.

On punitive damages,

see, e.g.,

Wilkes v. Wood,

12

Wils. K.B.

205, 95

Eng. Rep.

768

(C.P.

1763)

(the first English case explicitly granting punitive damages); K. REDDEN,

PUNITIVE

DAMAGES

S

2.2(AH2) (1980);

Koesel,

Invading the Province

of

the

Jury:

Section

2315(c)

and Judicial Determination

of

the Amount

of

Punitive Damages,

15

OHIO

N.U.L.

REV.

55, 59

(1988).

'

see

w.

KEETON.

D.

DOBBS.

R. KEETON,

&

D.

OWEN.

PROSSER

AND

KEETON

ON

THE

LAW

OF

TORTS

5

2

(5th

ed.

1984)

[hereinafter cited

as

PROSSER

&

KEETON].

See

Sales,

The

Emergence

of

Punitive Damages in Product Lidility Actions: A

Furthm

Assault

on

the

Citadel.

14

ST. MARY'S

L.J.

351, 355 (1983).

K. REDDEN,

supra

note

1,

s

2.2(D);

Zitzer,

Punitive Damages: A Cat's

Clavicle

in

Moh

Civil

Law,

22

J.

MARSHALL L. REV.

657, 663 (1989).