Re: Posner won't let the bed bugs bite

I'm sure most of you know of Judge Posner. He is probably the most famous living judge not on the Supreme Court. He is known as the father of the “economics and law” era (which is our current era). Before being appointed to the Federal 7th Circuit, he was a law professor at U. Chicago, where he still lectures. As a law professor he was a prolific author, and this has held true for him as a judge as well, writing over 90 opinions per year. All of his opinions are supposedly based on economic theories. He is famous for saying that the word “justice” has no meaning – not necessarily an odd thing to say in this postmodern age, but still a strange utterance for a federal appellate judge.

I give this biographical preamble in order to say that I hate Judge Posner. Any judge who can seriously give an opinion that argues that racism should not be combated in our legal system because the market will eventually put racists out of business because they will have a smaller customer base is no friend of mine. But, that said, he is the perfect judge for this legal issue. The legal theories that underlie damages are coldly and quite reasonably economic in nature. The very question that Mark brings to our attention was, in fact, a question on my civil procedure final exam. Here’s how damages work:

Compensatory damages are supposed to "make the plaintiff whole." That is, pay for every penny of the damages caused by the defendant (so, it does not include the costs of litigation), but not a penny more. The amount of damages that the court decides is compensatory is adjusted to “present value,” which means that it is adjusted for expected interest rates and inflation rates if it is intended to compensate someone over a period of time.

Punitive damages, by contrast, aim entirely at punishment. Specifically designed to punish the defendant for wrongful behavior, they provide an exception to the general rule that damages serve only to compensate the plaintiff. Both substantive law and rules of evidence reflect the change in emphasis. For example, mere negligence will generally not support an award of punitive damages. “Willfulness” or some malicious intent on the part of the defendant is generally required. Because punitive damages aim to punish defendants rather than compensate plaintiffs, in some jurisdictions plaintiffs seeking punitive damages may introduce testimony as to the defendant’s net worth. The idea is that the court needs to know the defendant’s wealth in order to know how much the punitive damages will hurt – a sort of monetary instance of suiting the punishment to the crime (though there is not a criminal in a civil suit – I just didn’t want any confusion on account of my analogy).

[add: there is a third reason too. We want people to bring cases against people who are willfully doing illegal things that harm others. Punitive damages serve as an incentive to people to litigate because award money above and beyond compensatory damages.]

The bottom line is that I completely agree with Posner on this one. Punitive damages are not supposed to do anything related to compensation. They are intended to serve as retributive justice and as a deterrent against willfully or maliciously caused harms. A $1000 punitive damage award would have little effect on a corporation, but might be appropriate for a lower-middle class family.

There is one problem. Why should the plaintiff get the money from the punitive award? There are two reasons. First, the plaintiff will have to pay a lot of money to have litigated this case, and the fact that they have been awarded punitive damages means that they had a very good case. They should get the money from the punitive damages in order to cover those costs. Sometimes the punitive damages will be more than their costs, sometimes less. Second, who else should get the money? The government? We don’t want the government in charge of both deciding punitive damage awards and receiving the money do we? That would be a bit of a conflict of interests. Someone other than the plaintiff or the government? Who? And who decides?


As a side note: The increased willingness of courts and juries to award punitive damages has led to litigation challenging the constitutionality of punitive damages alleged to be excessive. The Supreme Court decided six cases struggling to find an answer to the question of what exactly should be the limits of punitive damages. These cases essentially establish that the Due Process Clause sort of requires that courts review punitive damages, and these cases also establish some procedural standards for that review – but they provide no real guidelines for determining if a punitive damage award is too big. The following are the main three cases that do this, which will be interesting only to those who are interested in civil procedure (though Carney might like the BMW v. Gore case because it has some interesting issues related to states rights, if I recall):
1. Honda v. Oberg
2. BMW v. Gore
3. Cooper Industries v. Leatherman Tool Grp.

- posted by Ethan at 10:58 PM; link

 
Posner won't let the bed bugs bite

Here's an article about a recent decision by Judge Posner that has the rare merit of being simultaneously oddball and important (or see here if you aren't registed with the Trib). The decision concerned a lawsuit against a Chicago Motel 6 which was almost "farcically" inept at dealing with an infestation of bed bugs. The important aspect of the ruling is that Posner refuses to accept any requirement that punitive damages be proportional to conpensatory damages. Perhaps Carrier has a line on this.

And for those of you who are still not convinced by my previous endorsement of the World Poker Tour, Slate has an article about a recent episode.

- posted by Mark at 12:28 PM; link

 
The new New York Times conservative

Here's a fluff piece on David Brooks from the New York Observer. It's almost shocking how un-serious it makes Brooks look. One might infer from this portrait that he's moderate only because he's too good-natured to adopt any unpopular positions. Can you even imagine a profile of Safire like this?

- posted by Mark at 6:14 PM; link

 
Specter Campaigns for Chairman

Arlen Specter's communications director writes in the Washington Times today:

Superficially, some may argue against a prospective chairmanship of the Judiciary Committee, but on the facts, Mr. Specter has supported all of Mr. Bush's nominees, has consistently rejected imposing a litmus test on pro-life nominees and is in a position to render unique assistance to Republican causes because of his standing and credibility.

- posted by Carney at 11:09 AM; link