W. Kip Viscusi, The Social Costs of Punitive Damages Against Corporations in Environmental and Safety Torts, Punitive damages, Empirical legal studies, Power of a statistical test, Tort reform
Applied Statistics | Civil Procedure | Legal Remedies | Torts
Professor Viscusi's article differs from the dominant mode of law and economics scholarship on punitive damages. The usual punitive damages article contains purely theoretical considerations about when punitive damages are appropriate and about their optimal level; no effort is made to ascertain whether the existing pattern of punitive awards corresponds with the theory. This is part of a larger problem: the dearth of empirical evidence in law and economics scholarship. Viscusi, on the other hand, provides empirical tests of whether punitive damages accomplish their goals, and he makes creative use of publicly available data sources. For the goal of his project and his use of the data, he should be commended.
As executed, however, Viscusi's study is inappropriate as a basis for policymaking and unreliable as evidence about punitive damages. The study is based on questionable empirical premises about punitive damages, questionable understanding of applicable legal rules, and questionable statistical methodology. In addition, the study analyzes punitive damages' effects in areas of law in which one would least expect to find substantial effects.
Eisenberg, Theodore, "Measuring the Deterrent Effect of Punitive Damages" (1998). Cornell Law Faculty Publications. Paper 386.
Published in: Georgetown Law Journal, vol. 87, no. 2 (November 1998).