The problem is not that punitive damages are assessed in crisis proportions no one knows what crisis proportions are. Rather, the problem is that punitive damages are often assessed in inappropriate situations or in unjustifiable amounts. Formulations like Punitive damages are too high or Punitive damages are too low suffer from the same problem as statements like Too many people are convicted of murder. Such statements, based on aggregate results, lose sight of the purpose of the law, which is to establish a fair process for achieving a fair result in individual lawsuits. A solution to the punitive damages problem must explain what a correct result is and how to achieve it in individual cases.
Criminal law is a better tool than punitive damages to punish and deter.
However, if the civil law continues to be used to impose punitive damages, various reforms merit consideration. In addition, punitive damages should incorporate those features pointed out above as advantages of the criminal law. Punitive damages should concentrate on how much defendants benefited from their reckless or malicious conduct. All penalties already incurred by defendants, like regulatory fines or compensatory damages, should be subtracted from this number. Multipliers may be appropriate, in cases where the underlying conduct was hard to detect.