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Published online by Cambridge University Press: 23 January 2015
While jurisprudence in the United States has been cast in the general mode of the English common law, modifications over time have produced enough significant variations that American law has a distinctive quality. To illustrate: The exclusionary rule in criminal cases prohibiting the use of evidence (even from reliable witnesses) acquired through illegal search, is not followed in Britain—or, for that matter, in Canada, Germany, and Israel. The punitive-damage concept (PD) in tort law is also a jurisprudential novelty. Punitive damages are imposed in addition to compensatory awards given to tort victims to warn manufacturers and sellers to be careful in their safety and marketing practices. PDs are society's warning signals: Seller beware! Because they are one of society's ways to protect itself, PDs have recently been considered as fines which, to prevent excesses, should be under the rubric of the Eighth Amendment.
This essay introduces new elements into the discussion on torts by hypothesizing (1) PDs are fines which belong to the public purse; (2) that expenditures from the public purse should be given to local organizations (like orphanages and inner-city hospitals) which provide vital services for those unable to pay; and (3) that the victim (or the victim's survivor) has a right to designate what local organizations should benefit from his or her punitive-damage awards.
The hypotheses require reexamination of the concepts of citizenship, community, and work, respectively.
Tort law is an integral part of the American law of injuries, a body of judicial doctrine and legislation and a set of legal arrangements that also include compensation systems and safety legislation. It would have been unthinkable as recently as twenty-five years ago that the tort system would become a source of bitter contention. Today, however, it generates sharp rhetoric and dramatic proposals for change to address its contested problems, as well as strong views in favor of continuing the system essentially intact so as not to disturb its contended benefits.
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27 The National Law Journal, December 24, 1984.
28 A controversial difference in the bills is that Shumway's proposal would cap the amount of punitive damages a claimant may recover, limiting it to twice the amount of compensatory damages awarded but not to exceed $1 million. In addition, the total punitive damage liability of a manufacturer for a particular product would be limited to $5 million or 5 percent of a company's net worth, whichever is less. The Kasten bill did not provide such protection. States like Minnesota and Wisconsin already require plaintiffs to show conclusively that the defendant was guilty of reckless conduct before punitive damages can be awarded.
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