Punishing For The Injury

The limitations on a punitive damage award depend on the conception of punitive damages. Is it a private law remedy, limited to resolving the dispute between the parties? Or is it a public law remedy, capable of addressing public harm and achieving public good? The Supreme Court has not wavered from public law ideas of punitive damages - that the damages serve the state’s interests and are similar to criminal punishments. At the same time, the Court has focused on the actual injury to the plaintiff in its holdings and prohibited punitive damages from punishing harm to nonparties, indicating that punitive damages serve only the private law purpose of resolving the parties’ dispute. This Article examines tort law’s influence on the constitutional limitations of punitive damage awards, an influence that mandates a private law conception of punitive damages. Tort law lacks the ability to punish unless a finding of liability for an underlying injury exists. Punitive damages should thus be based only on the underlying injury for which the defendant is liable. Consistent with tort law’s influence, punitive damages that punish the public harm that the defendant’s conduct created would be unconstitutional, meaning that punitive damages will be minimal if supported only by an award of nominal damages. Also consistent with tort law’s influence, punitive damage awards must be personalized to the individual dispute despite the Court’s recent concerns about unpredictability.