Surprisingly Punitive Damages

Damages can add up to super-punitive amounts in unintended ways. To take a textbook example: The Defendant has caused an industrial accident or other mass tort. Plaintiff 1 sues, winning punitive damages based on the reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. If each of these punitive awards is directed at the same general badness of that original act, then these punishments are redundant. When such redundancy occurs, even damages that are meant to be punitive can reach surprisingly punitive levels. This Essay addresses two distinct ways in which unexpectedly excessive damages may arise. The first and more straightforward problem is redundant punitive damages, as in the scenario above. The second and more subtle problem is what we might call the hyperenforcement of statutory damages: when successful enforcement in fact occurs more frequently than is implicitly assumed in the statutory scheme (with awards preset at super-compensatory levels to make up for some expected degree of under-enforcement). The result there is that damages not meant to be punitive can nonetheless stack up to punishing effect, most famously when thousands or millions of claims are aggregated. Both problems are classic concerns that have defied tidy resolution despite decades of anxious recognition by courts and commentators