A Flawed Case Against Punitive Damages

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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.

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87 Geo. L.J. 359

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