Goudkamp and Katsampouka, ‘Punitive Damages and the Place of Punishment in Private Law’

It has long been orthodoxy that punitive damages, because they are awarded in order to punish, are an anomalous remedy. So entrenched is this understanding that it has never been seriously challenged. However, even apparent truisms about the law should be questioned and, accordingly, this article offers a rival account. It contends that the deeply ingrained view that punitive damages are an aberration is a half-truth because several other remedial rules are also aimed, at least in certain circumstances, at punishment. We concentrate in this regard on the doctrine of remoteness and its attenuation where the defendant has intentionally injured the claimant, aggravated damages, the account of profits remedy and general damages. Overthrowing the orthodox understanding regarding punitive damages has important prescriptive implications. In particular, it follows that the belief that punitive damages are an alien presence in private law supplies no basis for confining the jurisdiction to award them.

James Goudkamp and Eleni Katsampouka, Punitive Damages and the Place of Punishment in Private Law, Modern Law Review, https://doi.org/10.1111/1468-2230.12654. First published: 6 August 2021.

First posted 2021-08-09 14:00:46

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