Politics: J'accuse!

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
If you believe you need punitive damages to compensate, then you're issue should be with the compensatory damages system, not preservation of the punis system. I'm all for adequate compensatory damages, and I'd happily support reform to ensure that they're given. But using punis to fill in for holes in compensatory awards is disingenuous, whether or not it benefits your clients.

Well, maybe it's the beers I've had in the interim, but that's making some sense. I do think that the potential for punitive damages compensates somewhat for a stacked deck, and I would favor having the rules of the game adjusted on the damages side. Plaintiffs, generally speaking, win about as often as they should, but they're forced by economic circumstances, to accept less than what makes them whole, whether by judgment or settlement. I see this happen doing defense work, too --- hold out, and the plaintiff always winds up taking a haircut because our system imposes the cost of further litigation on them. Giving them a higher top end doesn't seem unfair to me to compensate for this. I agree with your below point that it's less efficient than other "reforms."

Under the "punitives belong to the state" reform, you're calling for unilateral disarmament on the plaintiff's side before promising anything to assure balance is restored to the system.

As for the "public" good of enforcing the laws and behavior . . . Sure, punis can help to do that. But that still isn't a justification for letting the plaintiff keep them, that's just a justification for letting them be assessed.

Right, and as a policy guy I want to write rules that effectuate the ends at the lowest social cost. Here, presuming that bullshit puni claims are regarded as such by defendants --- and they are --- the only "cost" of the system is the moral outrage at the windfall.

And, sure, there are second-order effects, which is the reduction in incentive to bring the cases. But even your example of false claims act cases gives only 10% as the reward. That's a 90% tax. Are you saying that's too low and the government should simply allow the plaintiff in those cases to keep 100%?

Qui tam cases are special, because no part of the claim belongs to the plaintiff. Never did. The payment is more like the "inconvenience bonus" some courts give class reps (where the controlling law doesn't preclude such awards under some fiduciary theory). Giving the plaintiff 10% when he suffered no injury is just Congress's way of incentivizing whistleblowing, because it's the bringing of the lawsuit that's the pain in the ass (and which ends your career). Punitives are an add-on to a system that presumes you're compensated for bringing the lawsuit by getting your compensatories.

But I am fairly confident that random awards of punitives are a fairly inefficient mechanism of deterence, and to encourage that method of enforcement is misguided.

I agree with the first half of this sentence. I would gladly welcome the introduction of government enforcement of the malice/oppression/fraud policy rather than have it done by punitive damages. Why are you advocating the first half of radical reform without the necessary second half?