“Large punitive damages awards get attention;” an observation that remains as true today as it was twenty years ago, particularly in the United States. The cases excerpted in the chart below are just a few of the headline-grabbing punitive damages verdicts within the past five years. As the figures show, punitive damages can total in the billions of dollars--a significant recovery for plaintiffs and a serious punishment for defendants. But if these cases were brought in a civil law jurisdiction, like France, Germany, Italy, or even Louisiana, they would be non-existent. Likewise, an American plaintiff seeking to enforce these punitive damages awards in a civil law jurisdiction would be out of luck. Civil law jurisdictions (those that do not follow the Anglo-American common law model) have generally rejected punitive damages as contrary to public policy, an unjustified “windfall” to plaintiffs of monies that they are not entitled to under the law. But the tide is starting to turn, and there are indications that civil law jurisdictions are ready to adopt this quintessential Anglo-American legal remedy of punitive damages.
The cases cited in the chart below represent just a small sampling of headline-grabbing punitive damages awards in the last decade in the United States, in civil cases ranging from cancer-causing products liability claims to intentional infliction of emotional distress actions against a right-wing blogger and media figure. The availability of these types of punitive damages, those awarded to punish and deter particularly egregious conduct in the context of a civil lawsuit, is ubiquitous in the Anglo-American common law system. But not so in civil law jurisdictions around the globe, such as Argentina, France, Germany, Greece, Italy, and many others where punitive (or exemplary damages) are not available as a matter of law. Civil law jurisdictions have traditionally rejected these punitive damages as contrary to foundational principles of civil law, as an improper mingling of public and private law resulting in an unjust “windfall” to the tort victim who has been fully restored by compensatory damages and has no legal right to additional damages. This rejection is so complete that civil law jurisdictions typically decline to enforce punitive damages awards from their common-law counterparts like the United States as contrary to civilian public policy.
Louisiana, occupying its unique space in the United States as a mixed jurisdiction embracing the civilian tradition in its private law systems, has likewise long adhered to the principle that punitive damages run counter to the purpose of awarding damages, which is primarily to compensate for the harm suffered by the victim rather than to punish the wrongdoer. For this reason, Louisiana law eschews the award of punitive or exemplary damages except in the rare instance where strictly authorized by statute. This disfavor for punitive damages is rooted in the civilian belief in a firm separation between “public law,” governing the state's relationship with its citizens, such as through criminal statutes, and “private law,” like contract or tort law, typically governing citizens' relationships with one another. A core principle of the civilian perspective is that tort law is private law. As such, the purpose of tort law is purely to restore the private victim to the position they would have otherwise been in without suffering the harm caused by another. Any award beyond this (such as punitive damages designed to punish the wrongdoer) would be unjust enrichment or a windfall to the tort victim and an improper crossover into the realm of public law, which has as its focus the public good rather than correcting private harm to the individual. But within the last decade, civil law jurisdictions' resistance to punitive damages has begun to show signs of softening, perhaps for the same public policy reasons that punitive damages have taken such firm root in the Anglo-American common law such as a need to punish particularly egregious actors for whom compensatory damages are simply not impactful enough to deter the wrongful conduct. The benefits of importing this common law mechanism of punitive damages into civil law systems has begun to intrigue both civilian lawmakers and scholars alike. However, the scholarship to date on punitive damages has largely been from an Anglo-American perspective where the doctrine of punitive damages has developed and flourished. As civilian jurisdictions stand on the cusp of making this monumental change and considering this purely common law device, this Article seeks to shift the narrative and evaluate punitive damages through a civilian perspective in the hopes of informing the best way forward for those civil law jurisdictions contemplating incorporating punitive damages into their system. In particular, this Article examines the emerging device of the split-recovery statute implemented in eight states within the United States currently, which serves to (as the name implies) “split” recovery of punitive damages between the public arm of the state and the private individual tort victim, with each state implementing a different methodology for doing so. This Article explores why civil law jurisdictions have traditionally rejected punitive damages as contrary to public policy, how that attitude may be changing, and what would best allow civil law jurisdictions considering incorporating punitive damages into their remedies to do so without upsetting fundamental civil law concepts, particularly separation of public and private remedies.
In particular, this Article explores a proposal for incorporating a similar split-recovery statute in Louisiana. In many ways, the state serves as a de facto laboratory for civil law systems seeking to import common law devices because it is situated as a mixed legal system within the United States, with a strong civilian tradition in the private law bookended by a common law approach to public law. This proposal is explored both through exploring legal transplants of the Anglo-American punitive damages remedy into civil law systems as well as through the functional method of comparative law where “two rules are comparable if they endeavor to accomplish or have the same function in their respective societies.” This split-recovery statute may yet provide the best way forward not only for Louisiana, but also for other civilian jurisdictions increasingly exploring the possibility of merging civilian principles with the modern policy benefits of punitive damages.
About the Author
Meera U. Sossamon, Assistant Professor of Law, Loyola University New Orleans College of Law. I must first thank Loyola University New Orleans College of Law for providing a research grant to support the writing of this Article. An earlier draft of this Article was presented as a work-in-progress both at the 2022 Southeastern Association of Law Schools (SEALS) New Scholars Workshop and the 2022 Central States Law School Association (CSLA) Annual Conference. The feedback and input I received at both events was invaluable. Immense thanks must also be given to my SEALS mentor Professor Caprice L. Roberts of Louisiana State University's Paul M. Hebert Law Center for her insight and support. I am also thankful to Professor Melissa T. Lonegrass and Professor Elizabeth Carter of Louisiana State University's Paul M. Hebert Law Center for their mentorship and guidance. And of course, last but in no way least, I must acknowledge my colleagues at Loyola University New Orleans College of Law, without whose support I could not have finished this Article. In particular, Dean Madeleine Landrieu, Dean Mary Algero, Professor Mitch Crusto, Professor Nikolaos Davrados, Professor Isabel M. Medina, Professor Markus Puder, Professor Sandi Varnado, and Professor Monica Wallace have been immeasurably kind and supportive colleagues, mentors, and friends throughout this process. I also thank my research assistant Ryan Simoneaux for his dedicated and meticulous eye in improving this work. Any shortcomings and errors of this Article are solely my own.
Citation
98 Tul. L. Rev. 219