In defense of deterrence.

Author:Popper, Andrew F.

The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation--the tort system itself--has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others.


    For families suffering the wrongful death of a loved one and victims of defective products or negligent acts--suffering brain injury, loss of a limb, the ability to reason, or the capacity to love and be loved--litigation is about more than money. (1) It is about more than vengeance or retribution. It is about the promise of the civil justice system.

    Civil justice for plaintiffs derives from the fairness of the process, the right to have one's story told, meaningful remedy, and one additional factor: plaintiffs ask the legal system to take steps to prevent repetition of their tragedy. (2) Prevention of future harm is a powerful public expectation and basic motivation for those injured by wrongful acts or defective products. (3)

    Families and victims do not want their tragedy to be a loss in vain, a hope expressed by some courts as well. (4) Individuals and entities brought to justice establish models for future actions producing positive incentives that lessen the probability that others will suffer the same harm they experienced. (5) When school athletic programs fail to protect a student (6) or an infant's breathing monitor fails, (7) i.e., when avoidable disaster strikes, we look to the legal system for recognition of harm--and for the hope that future losses can be avoided.

    In a contractarian model of the legal system, a party who harmed another would simply pay for it. (8) The tort system is not primarily contractarian. (9) It is about fault and responsibility, obligation and foresight, carried out with the hope that civil justice produces a result that acknowledges plaintiffs losses and limits the possibility of a repetition of plaintiffs tragedy. It is about deterrence.

    The nature of a legal proceeding or judgment affects the deterrent impact of that action. The civil justice system reflects a remarkably complex array of procedures, judgments, and other legal actions. A punitive damage award is likely to have a more immediate deterrent effect than a simple negligence case with modest compensatory damages. (10) Cases that result in an articulation of clear norms or principles will have more of a deterrent effect than those that do not. (11)

    Each case in a common law system creates the potential for normative articulation and deterrent impact. The force of a clear judicial determination of liability is undeniable. Similarly situated entities assess such findings and either reconfigure their action or behavior (a deterrent response) or choose not to do so and, thereby, risk downstream liability. (12) Frankly, it is hard to conceive of a healthy economic model where rational actors ignore clear warning signs and thus render themselves vulnerable to sanctions or punishment. (13) Recognizing that different types of cases and outcomes are likely to produce varied responses by nonparties is by no means an indication of the lack of deterrent effect. (14)

    It is a fair guess that the pointed and at times bellicose nature of the tort reform debate has made it more dangerous to speak realistically about deterrence. (15) Perhaps those supporting tort reform's gross limitation of accountability are concerned that acknowledging a powerful deterrent effect in a particular case would undercut the baseline assumptions of tort reform. Similarly, for consumer advocates and those who litigate on behalf of plaintiffs and oppose tort reform, acknowledgement that certain cases have little or no deterrent effect could be seen as undercutting their antitort reform position. (16) Thus, it should come as no surprise that there is no single comprehensive juried study that looks broadly at the deterrent effect of tort law. (17) Instead, the literature consists of well-researched position papers, testimony, opinions, and scholarly articles of academicians of every stripe as well as those of practitioners, economists, and others. (18)

    This article references a number of those works on deterrence and tort law and concludes that the tort system is fully defensible as a primary deterrent mechanism. It is not a perfect system. Not every case deters. In the aggregate, however, the civil justice system provides a powerful and continuous messaging device that positively affects the safety and efficiency of goods and services.


    The debate regarding deterrence can be distilled down to messaging. A tort case can communicate a normative message, an avoidance message, or a message affirming current practices. (19) To deny that judicial decisions provide a valuable deterrent effect is to deny the historic role of the judiciary, not just as a matter of civil justice but as a primary and fundamental source of behavioral norms. (20) Part of the task of the judiciary is to be a solid and objective voice of reason and reasonability, articulating standards that are just, even when they go against the grain in a business or an entire industry. (21) "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." (22)

    It does not seem controversial to assert that the articulation of standards or norms has a positive influence on behavior and deters future misconduct. (23) "[T]he threat of tort liability has the capacity to deter broadly...." (24) To argue that the prospect of civil liability has little or no effect on future behavior collides with a common understanding of how we react to the potential of punishment. (25) "Certainly the threat of tort liability is commonly considered to have a substantial effect on behavior." (26) While there is literature suggesting that conventional views of sanction, censure, and punishment are in need of study, (27) there is nothing to challenge the common sense notion that humans learn by example or that people tailor behavior to minimize sanction.

    In discussing the potential of tort liability within a family unit, where courts have been hesitant to intervene, Professor Benjamin Shmueli observed that "[t]ort law sends the message--both to the specific tortfeasor and to potential tortfeasors--that there are certain values that society is not willing to compromise. Imposing liability warns the tortfeasor that if the behavior exhibited ... is not consistent with societal values, there will be appropriate legal sanctions. (28) Those sanctions establish both lowest common denominator standards as well as signaling to others the most basic levels of acceptable and unacceptable conduct.

    The norms generated in torts cases can have an impact by defining a baseline for tolerable conduct in the workplace and academic settings, complementing the regulatory enforcement mechanisms extant in the field of sexual harassment. (29) While one might argue that family members or certain workers are not fully informed of standards that evolve in a common law context (notwithstanding the historic presumption of knowledge of those standards), (30) private and public employers and educational institutions are more likely aware of and responsive to the potential for liability, (31) i.e., the deterrent effect of tort law.

    Professor John C.P. Goldberg notes that beyond providing compensation to those who are injured, "the most obvious function tort might play is to send a message to powerful actors that they must give due consideration to the well-being of others. Tort cases can also foster public dialogue and debate about social problems, particularly problems related to the use and abuse of power." (32) Abuse of power is arguably at the heart of workplace or academic harassment cases. (33)

    The impact or quantum force of messaging--the deterrent value-is difficult to calculate. As noted earlier, deterrent effect is driven by the nature of the legal proceeding. It is also affected by the notoriety of the misconduct, the resulting damages, and commonality of the product or practice underlying the case--the event to be deterred. On the matter of force or effect, Professor Stephen Gilles comments: "My fundamental conclusion is that modern American negligence law regulates activity levels to a considerably greater extent than has previously been recognized." (34) While there is little to quantify that effect, there is simply no credible juried study that establishes the absence of that effect. (35)

    It is perfectly consistent with overall assessments of human behavior (36) "that a liability determination will affect future cases." (37) The proposition is simple: "[d]amage awards modify future behavior indirectly by providing disincentives for future conduct that is unduly risky." (38) To assume otherwise...

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