In Defense of Deterrence

The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation--the tort system itself--has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others. I. INTRODUCTION For families suffering the wrongful death of a loved one and victims of defective products or negligent acts--suffering brain injury, loss of a limb, the ability to reason, or the capacity to love and be loved--litigation is about more than money. (1) It is about more than vengeance or retribution. It is about the promise of the civil justice system. Civil justice for plaintiffs derives from the fairness of the process, the right to have one's story told, meaningful remedy, and one additional factor: plaintiffs ask the legal system to take steps to prevent repetition of their tragedy. (2) Prevention of future harm is a powerful public expectation and basic motivation for those injured by wrongful acts or defective products. (3) Families and victims do not want their tragedy to be a loss in vain, a hope expressed by some courts as well. (4) Individuals and entities brought to justice establish models for future actions producing positive incentives that lessen the probability that others will suffer the same harm they experienced. (5) When school athletic programs fail to protect a student (6) or an infant's breathing monitor fails, (7) i.e., when avoidable disaster strikes, we look to the legal system for recognition of harm--and for the hope that future losses can be avoided. In a contractarian model of the legal system, a party who harmed another would simply pay for it. (8) The tort system is not primarily contractarian. (9) It is about fault and responsibility, obligation and foresight, carried out with the hope that civil justice produces a result that acknowledges plaintiffs losses and limits the possibility of a repetition of plaintiffs tragedy. It is about deterrence. The nature of a legal proceeding or judgment affects the deterrent impact of that action. The civil justice system reflects a remarkably complex array of procedures, judgments, and other legal actions. A punitive damage award is likely to have a more immediate deterrent effect than a simple negligence case with modest compensatory damages. (10) Cases that result in an articulation of clear norms or principles will have more of a deterrent effect than those that do not. (11) Each case in a common law system creates the potential for normative articulation and deterrent impact. The force of a clear judicial determination of liability is undeniable. Similarly situated entities assess such findings and either reconfigure their action or behavior (a deterrent response) or choose not to do so and, thereby, risk downstream liability. (12) Frankly, it is hard to conceive of a healthy economic model where rational actors ignore clear warning signs and thus render themselves vulnerable to sanctions or punishment. …