October 31, 2006
Punitive Damages II Posted by Fredric Smoler at 08:00 PM EST John Steele Gordon writes against current law regarding punitive damages in civil litigation, asserting that while compensatory damages necessarily go to a victorious plaintiff, any punitive damages ought to go to the state, and be determined by a judge rather than a jury. Mr. Gordon complains that lawyers “take cases not to right wrongs but to profit.” I must confess that I rather admire this feature of our market economy: A lawyer is not required to love justice to help me achieve it. Knowing a fair number of lawyers, this seems to me to be a very sensible procedure. With respect to some of Mr. Gordon’s other anxieties, a lawyer already has an incentive to avoid frivolous litigation—the likelihood of losing, and the risk of sanctions. A lawyer also has a reliable incentive to attempt to achieve justice—the chance to make some money doing so. Adam Smith never trusted men who professed to trade for the public good, and I think he was a shrewd judge of character, and of probable humbug. The danger of excessive punitive damages is currently addressed by the power of a judge to reduce damages he or she finds excessive, and I cannot understand why a plaintiff should not receive punitive damages when grossly and egregiously harmed. Mr. Gordon also writes that “the level of punishment for a given degree of misconduct should not be determined solely by the histrionic talents of lawyers or whether members of a jury got out of bed on the wrong side that morning.” Well, that is the way we decide who gets to be President of the United States. If it is good enough for allocating control of nuclear weapons, it is probably good enough for deciding what is going to happen to Philip Morris.
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