The Constitutionality of Split-Recovery Punitive Damage Statutes: Good Policy but Bad Law
Few could imagine a state enacting legislation that provides for a fine in an unspecified amount, payable to the state, as punishment for behavior determined after the fact to be unreasonable. Surely, this would conflict with constitutional principles. Yet this is arguably what is happening in several states in the name of good public policy. The fairly recent trend of states adopting split-recovery punitive damage statutes—statutes that allocate a percentage of punitive damage awards to the state—has appeal from a policy perspective, but suffers from several constitutional infirmities. Proponents of split-recovery statutes argue that since the purpose of punitive damages is to punish and deter—a societal objective—it is logical for society at large to benefit from a punitive damage award. The plaintiff has been fully compensated for the wrongs done to her through compensatory damages; after all, academics, laypersons, and Supreme Court Justices alike have complained for years that awarding punitive damages to a fully compensated plaintiff is nothing more than allowing that person to win the lottery. The state, on the other hand, could put the money to a beneficial use, such as restitution for crime victims, better social programs, or even simply reducing the amount a state must collect from its residents to maintain a balanced budget. These policy arguments are compelling, but a more fundamental question remains unanswered: are these statutes constitutional? This Note argues that split-recovery statutes are unconstitutional because the state’s involvement should trigger additional constitutional safeguards for the defendant. Part II briefly describes the history of punitive damages in America. Part III gives a summary of the constitutional limitations placed on punitive damages by the Supreme Court in recent jurisprudence. Part IV focuses on splitrecovery statutes, looking at the additional state action they involve and the specific constitutional problems that may arise. Part V discusses potential solutions in line with good policy and the Constitution, both for states that want to retain their split-recovery statutes, as well as for states that wish to find alternatives.
Symbolism and Incommensurability in Civil Sanctioning: Decision Makers as Goal Managers
Factfinders in civil cases must often make a constellation of decisions, such as assigning responsibility and blame, making compensation and (sometimes) giving out punishment. These decisions are likely to evoke numerous social and moral concerns and, therefore, inevitably implicate a variety of instrumental and symbolic goals. We argue that descriptions of legal decision making that fail to consider the psychological interplay among these different goals are likely to come up short in their efforts to explicate the ways in which jurors and other factfinders make decisions in civil cases. Instead, we suggest that decision making in civil cases can profitably be thought of as a process by which decision makers attempt to maximally satisfy a wide variety of goals in parallel. In contrast to many traditional legal and economic portrayals of legal decision making which posit that decision makers can pursue single motives as instructed, we argue that jurors and other finders-of-fact deciding civil cases ought to be thought of as pursuing many different goals simultaneously. We briefly describes many of the goals that may underlie decision making in civil cases and introduces a set of basic goal management principles that define how these goals interrelate. We next describe social psychological research that suggests that legal decision makers may be motivated to pursue a variety of goals in addition to the traditional goals of determining fault, compensating plaintiffs, and deterring defendants. Different motives for distributing resources, value expressive goals and a need to restore the proper relative moral balance between the parties may all play a role in civil decision making. Finally, we propose that decision makers may attempt to simultaneously satisfy these multiple goals through a process of parallel constraint satisfaction.
The Convergence of Explanatory Coherence and the Story Model : A Case Study in Juror Decision
This paper presents an integration of two approaches to complex decision-making from very different traditions: from the psychology of jury decision, the Story Model, and from the philosophy of science, the Theory of Explanatory Coherence and its computational instantiation, ECHO. The subjects in Pennington & Hastie (1993) generated causal “stories” to represent the events related to a particular trial. These stories were modeled with ECHO, and ECHO reached the same verdicts as did the human subjects. The ECHO simulations were also linked to the trial testimony, which, despite the inconsistent nature of the testimony, actually increased the coherence of stories for two jurors with very different verdicts. Implications for both the Story Model and ECHO are discussed.