Whatever our differences of opinion about the American justice system, we could probably all agree that its workings should be rational, predictable, consistent and equitable. The levying of punitive civil damages, I would argue, has become inconsistent with and in fact destructive of all those objectives. Let me try to isolate some of the things that make punitive damages unique, and some of the consequences of those differences. First and most fundamental, punitive damages are not damages at all, and we are never going to succeed in dealing with the problems they cause until we cease to think of them as such. In our civil justice system, damages have historically performed a restorative or compensatory function.
Punitive awards do nothing of the sort.
Only after the legal system has provided what it regards as full compensation do punitive damages spring into play. They are fines, intended to punish or deter. Whatever their origins, however, punitive damages are now treated as serving only a punitive and deterrent function. This, then, is the second point. Punitive damages are an anomaly in our civil justice system because they import the public function of criminal punishment into what is otherwise thought of as a primarily private system of restorative justice.