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.
A Constraint Satisfaction Model of Cognitive Dissonance Phenomena
A constraint satisfaction network model simulated cognitive dissonance data from the insufficient justification and free choice paradigms. The networks captured the psychological regularities in both paradigms. In the case of free choice, the model fit the human data better than did cognitive dissonance theory. Cognitive Dissonance Cognitive dissonance theory (Festinger, 1957) has been a pillar of social psychology for some 30 years. The theory holds that dissonance is a psychological state of tension which people are motivated to reduce. Two cognitions are dissonant when, considered by themselves, one of them follows from the obverse of the other. The amount of dissonance is a function of the ratio of dissonant to consonant relations, with each relation weighted by its importance. Dissonance can be reduced by decreasing the number and/or the importance of the dissonant relations, or by increasing the number and/or the importance of consonant relations. How dissonance gets reduced depends on the resistance to change of the relevant cognitions, with less resistant cognitions being more likely to change. Resistance derives from the extent to which change would produce new dissonance, the degree to which the cognition is anchored in reality, and the difficulty of changing those aspects of reality. Festinger (1957) used dissonance theory to account for a number of existing psychological phenomena, including the evaluation of choices, attitude change following attitude-relevant actions, and responses to the disconfirmation of beliefs. It has since been successfully applied in a wide variety of both predictive and postdictive contexts. Consonance Model In this paper, we present a computational model of cognitive dissonance. The model is based on the idea that dissonance reduction is a constraint satisfaction problem. Such problems are solved by the simultaneous satisfaction of many soft constraints which can vary in their relative importance. In this framework, beliefs are represented as units in a network and implications among the beliefs are represented as connections among the units. The units can be variously active and the connections (weights) can vary in strength. Hopfield (1982, 1984) has worked out the mathematics for solving such constraint satisfaction problems in parallel networks. Hopfield networks are capable of simulating a variety of psychological phenomena, including belief revision, explanation, schema completion, analogical reasoning, and content-addressable memories (Holyoak & Thagard, 1989; Rumelhart, Smolensky, McClelland, & Hinton, 1986; Thagard, 1989). Unless used to model memory, these networks are generally considered ephemeral in the sense that they are created on line to deal with some particular task, although the creative process is not usually modeled. Hopfield networks function by reducing energy (equivalently, maximizing goodness) subject to the constraints supplied by the connections and any external input. Our Consonance Model for reducing cognitive dissonance is a Hopfield network lacking some of the parameters of other Hopfield networks and introducing some special parameters of its own. Maximizing the consonance (goodness) of any pair of connected units depends on the sign of the connection between them. Assume an activation range of 0 to 1. If connected by a positive weight, both units should be active in order to maximize consonance. With a negative weight, consonance is maximized when both units are not active, that is, when both are inactive or only one is active.