Friday, January 27, 2006 Posts Article on Empirical Debate over Punitive Damages's In-House Counsel today has an article on the ongoing debate between Viscusi (Harvard) and Eisenberg (Cornell) over whether punitive damages are too large and out of control. Here's an excerpt from the article, which is entitled Are Punitive Damage Awards Too High?:

Viscusi, an economist who has been writing about punitive damages since 1991, says the system is broken -- thanks largely to the capriciousness of juries. Compared to judges, he says, juries are more likely to grant punitive awards and grant them at a higher level. Juries are also almost exclusively responsible for the growth of the $100 million-plus "blockbuster" awards, he says. Viscusi doesn't advocate the wholesale abolition of punitive damages, but he favors more guidance for jurors in the determination of these awards. He also advocates a regulatory compliance defense option that would eliminate punitive damages for parties that have met government regulatory standards.

Eisenberg, a lawyer by training, self-taught economist and an editor of the Journal of Empirical Legal Studies, disagrees. Having studied punitive damages since 1997, he says there is no evidence that the tort system is broken or that juries are irrational in their determination of damages. In fact, he finds that juries and judges award punitive damages in approximately the same ratio to compensatory damages, and that the level of punitive damages has not increased over time. He argues there is no reason for dramatic change. "Congress should spend more time worrying about real problems," he says. "This [punitive damages] problem is manufactured by self-interested groups to change the tort system," he says.

The full article is available at


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