Theory of Punitive Damages

A contemporary theory of punitive damages must answer two questions: (1) what place, if any, do punitive damages have in the civil law of tort, given that they appear to involve an idea of criminal punishment? (2) why are punitive damages subject to special constitutional scrutiny, as in the Supreme Court\u27s decision in BMW v. Gore, if they really are part of the civil law of tort? The article offers a theory that can answer both of these questions. Punitive damages have a double aspect, corresponding to two senses of punitive. Insofar as they pertain to the state\u27s goal of imposing a punishment upon a defendant who merits deterrence or retribution, they have a criminal aspect. Insofar as they pertain to the plaintiff\u27s right to be punitive, they have a civil aspect. Drawing upon the theory of civil recourse that the author has developed as a challenger to corrective justice theory, the article explains what a right to be punitive means. It then uses the recourse theory of punitive damages to support a rational reconstruction of the Supreme Court\u27s constitutional jurisprudence of punitive damages. When a case can be understood as involving principally a plaintiff\u27s right to be punitive, heightened constitutional scrutiny is not appropriate. However where, as in BMW v. Gore, the state is essentially imposing punishment, the excessiveness of a damages award is properly scrutinized under heightened constitutional standards