|
|
|
Foreign Courts Wary of U.S. Punitive Damages Adam Liptak
New York Times, March 26, 2008
“Most of the rest of the world views the idea of punitive damages with alarm,” writes Adam Liptak in his legal column for the New York Times, highlighting criticisms of punitive damages by legal thinkers abroad. Some think “it is not fair…to give plaintiffs a windfall beyond what they have lost.” Others fear plaintiffs and juries act as “private public prosecutors” and mete out punishment without due process. Most disfavor “the U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages,” considering the “ad hoc opinions of a jury” to be a “poor substitute for the considered judgments of government safety regulators.” Liptak notes that large awards, such as the $5 billion (later reduced to $2.5 billion) punitive damages against Exxon, “terrify foreign courts” and that other countries that do allow punitive awards typically do so “in limited circumstances and modest amounts.”
Many such criticisms of the lack of appropriate boundaries in the U.S. civil justice system are starting to be taken seriously by American lawmakers and judges. Liptak notes that five states “ban or severely limit punitive damages,” others “restrict the amounts awarded,” and some, “responding to the criticism that the awards are a windfall for the plaintiffs, require that a part be turned over to the states.” He also points out that “the United States Supreme Court has in the last decade or so started to impose its own limits” on punitive damages. Yet even as “American courts and legislatures are experimenting with ways to limit punitive damages … courts in a few countries around the world,” such as Spain, Australia, Canada, and Germany, “are expanding the availability of punitive damages.”
Liptak notes that “punitive damages are so embedded in the American legal system that the rationale for them is rarely explored.” Perhaps it is time to rethink some of the “distinctive features” of the system that “play a role in amplifying punitive damages” in order to restore confidence – both at home and abroad – that our civil justice system is reliable and reasonable. article »
| |
