Foreword: Punitive Damages Today and Tomorrow

• Author: Thomas C. Galligan, Jr.
• Position: President and Professor of Humanities, Colby-Sawyer College, New London, New Hampshire.
• Pages: 411-420

Page 411

One of the great benefits of any symposium is the promise the format provides to stimulate thought and dialogue. That promise becomes reality when one begins with an important and stimulating topic. Then, the style of the symposium paper comes into play. A symposium piece is generally shorter than a traditional law review article. As such, it gets to its point faster and more directly. Its logic is manifest and stripped of the longer article's tendency to painstakingly cover every detail at stake in the material. The symposium piece is a short story or novella rather than a novel. It is The Great Gatsby not Gone with the Wind. It may persuade but its pithier presentation and style will often provoke.

This Louisiana Law Review punitive damages symposium has all the elements for success. The topic-punitive damages-is critical and controversial. The authors are experts in their fields who take advantage of the symposium format and style to compellingly present their points in thoughtful pieces that will further the national and international dialogue. As the person introducing this symposium, I will seek to briefly do several things herein. First, I will, perhaps unnecessarily, remind the reader just why the topic is so important. Second, I will provide a brief roadmap to each of the pieces. And third, in the spirit of symposia, I will be provoked by the authors. For each of these excellent pieces I will seek to provide readers with a brief comment or question for consideration as they read.

So, why is the topic important? Over the last twenty years, much has been written about punitive damages. Those damages- sometimes called punitive, sometimes called exemplary, sometimes called smart money-are awards above and beyond compensatory damages that are designed to punish and deter the defendant and others like him, her, or it. What are the moral, economic, and historic justifications for punitive damages? Are they still applicable today? Why is it ever appropriate for the civil law of torts to punish; isn't that the purpose of the criminal law? Can juries be consistent in awarding punitive damages? Can appellate judges be consistent when they review punitive damages awards? How does one gauge and compare the value of consistency with the value of flexibility in Page 412 individual cases involving different facts? Is it moral for a plaintiff to recover more than enough to make him or her whole? Is such an increased recovery a windfall? Are punitive damages in civil cases constitutional? Under what circumstances are they unconstitutional? Whatever might be said about using the civil law to punish, are damages in tort suits inadequate to deter from an economic perspective? If so, might there be a role for some type of increased or augmented damages, designed not to punish but to deter?¹ These are just a few of the questions that courts and commentators have considered regarding this controversial area of the law. And, it seems, the more punitive damages cases that courts decide and the more that commentators write about the subject the more there is to be said. This well-conceived and extremely well presented symposium is proof positive that the punitive damages field has much ground that still needs tilling.

The issues presented here are many. Are there Constitutional limits on punitive damages beyond those that the United States Supreme Court has already imposed? What is the proper place for the class action vehicle in punitive damages cases? After two significant recent Supreme Court cases dealing with punitive damages in maritime law, what does the future hold in that area and what impact might those decisions have on admiralty law beyond their holdings? What is and what should be the law concerning vicarious liability for punitive damages? In a global economy and legal environment, consideration of the civil law world's consistent rejection of punitive damages is relevant and may tell us much about the differences between the civil and common law systems-but what? How does Louisiana law treat punitive damages? Has Louisiana's choice to generally follow the civil law trend of denying punitive damages, except where the legislature has so provided, result in a more predictable system? A more arbitrary system? A more coherent system? And, finally, what are some of the forum shopping and conflicts of law issues that punitive damages present? These are just a few of the topics the articles in this symposium present. Page 413

In his article, Punitive Damages and the Constitution,² Thomas Dupree, a partner with Gibson, Dunn and Crutcher LLP, reviews the due process cases dealing with when the amount of punitive damages awarded may be unconstitutional, and he contends that the Constitution's guarantee of due process goes beyond limiting the amount of a punitive award. Dupree argues that there should be a constitutional limitation on when a court may award punitive damages at all. He relies upon the void for vagueness doctrine as well as what he terms a common law requirement that a person cannot be punished for objectively reasonable conduct. Dupree argues that objectively reasonable conduct might be defined to include the following: compliance with a federal or state statute or regulation in designing a product; compliance with custom or industry standards; or the existence of a real doubt within the relevant community about the propriety of the conduct involved.

As the reader considers Dupree's article she may ask herself whether liability for pain and suffering or mental distress damages would also be susceptible to constitutional attack under Dupree's arguments about notice and vagueness.³ That is, is the award of damages in an amount necessary to compensate an individual plaintiff predictable? Or certain? Of course such an award is designed to compensate not to punish, but the notice and consistency issues seem just as salient with many types of general damages tort law awards. As for Dupree's proposal regarding a constitutional defense based on complying with objectively reasonable conduct, one may wonder how an objectively reasonable actor is ever subject to liability unless that liability is strict liability. And if the liability is strict and not otherwise based on fault-whether intent, recklessness, or negligence-one would have to search long and hard for a jurisdiction that imposes liability for punitive damages based on purely strict liability. However the reader answers these questions, Dupree's article raises considerable questions about punitive damages under the Constitution and provides fodder for further due process challenges to the common law of punitive damages. It is must reading for defense lawyers representing parties in potential punitive damages cases.

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