A Flawed Case Against Punitive Damages
I won't beat around the bush. I disagree with Professor Viscusi's premises, his conclusion, and much of the reasoning that connects them-nothing more, but, I am sorry to say, nothing less. In the discussion that follows, I identify thirteen critical errors (summarized in the concluding section) that, if I am right, undermine Viscusi's argument at almost every stage. The conclusion Professor Viscusi aims to defend is that punitive damages do no good and plenty of harm, so they should be abolished-not reformed, not capped, not. limited by the Due Process Clause, but abolished. The fundamental premise of his argument is that punitive damages can be justified only if "they serve [a] constructive deterrent function," and "pass a benefit-cost test."' In the penultimate section of this response, I will argue against this premise. As Marc Galanter and I have argued at length elsewhere, punitive damages are precisely what the name suggests-punishment-and the retributive aims of punishment are just as important as its deterrent aims. Viscusi's premise, I believe, simply leaves out the retributive point of punishment.
87 Geo. L.J. 359
Scholarly Commons Citation
Luban, David, "A Flawed Case Against Punitive Damages" (1998). Georgetown Law Faculty Publications and Other Works. 1755.
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