Abstract
It has traditionally been upheld that punitive damages are incompatible with the Constitutions of civil law countries. This paper sustains the opposing thesis and argues their compatibility, of a general nature, with the basic principles of continental European States, and especially with the principles of legality, proportionality and non bis in idem. This opens the way to the enforcement, in Europe, of sentences delivered in the United States of America. However, despite this starting point, the advisability of exporting the model of punitive damages is rejected. The theme is expanded to argue the equivalent nature of the guarantees and limits of all sanctioning activity of the State and those already established in Criminal Law. This would encompass punitive damages and all types of civil sanctions.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
See, above all, Gertz v. Robert Welch, Inc., 418 U.S. 323, (1973) at 350, in accordance with which punitive damages “are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence”; see Cooter 1997, 73, III, A. From that definition, it follows that one could talk of extracompensatory damages: see Markel, 2009a; in general, on terminological questions see, among others, Schlueter 2005, Chap. 2, § 2.1. In Spanish literature, it has been said, quite rightly, that punitive damages do not constitute a kind of damages, but an indemnification that goes beyond the mere redress of the damage caused. Hence, it would be more exact to speak of “punitive indemnification” or “exemplary indemnification” (see Fernández Gregoraci (2008). I use the expression punitive damages, throughout this work, because it is easily understood due to its widespread and commonplace usage.
For an historical perspective see, e.g., Rustad and Koenig 1993, 1274–1305; Schlueter 2005, at vol. 1, § 1; in the Spanish literature, see López Herrera 2008, especially, 17–34. About punitive damages in England, it has been said that punitive damages are allowed only in very limited circumstances. However, the landmark 2001 decision of the House of Lords in Kuddus v. Chief Constable of Leicestershire Constabulary,«has now removed much of the previous sclerosis»; see Andrew Tettenborn 2004; for more details see Wilcox 2009, 12–13 and 20–21.
These five States are Louisiana, Massachusetts, Nebraska, New Hampshire and Washington, to which Puerto Rico should be added; in this respect, see Rustad 2005, 1305. Particularly, M. Rustad & T. Koenig stress that it is a way of protecting the weak, especially against large mercantile companies (1993, at 1277).
See, nevertheless, the critical opinions contained in Mallor and Roberts 1999, n. 7; Sebok 2007; Colby 2003; and Dobbs 1998, among others, whose ideas may not be discussed here for lack of space. There are numerous proposals for reform, in which respect, see Elliott 1989; Ellis 1989, who especially criticizes the procedure for their jurisdictional recognition; Wheeler 1983, who requests greater procedural and material safeguards. But not even these perspectives are peaceful; in general see the summary provided by Owen 1994, 382 and ff.
This last proposal is not completely unknown, e.g., in Germany; on this, see Welke 2008.
See various hypotheses in the Spanish legal order in Reglero Campos 2000; but basicaly there are not punitive damages in Spanish system. In Germany, see the panorama advanced by Koziol 2008, at 749–750 and notes 47 to 54; Mueller 2000, especially p. 101 and ff. In Italy, punitive damages have been proposed in the introduction to the regulation on medically assisted procreation and the regulation of alimentary biotechnology (Stella 2003; F. Benatti 2008). In Europe, the possibility of introducing punitive damages into the framework of European competition law has been proposed (see White paper on damages actions for breach of the EC antitrust rules, Brussels, 2.4.2008, COM (2008), 165 final). See also Regulation 864/2007 of 11 July, 2007, on the law applicable to extracontractual obligations, particularly Whereas Clause 32, which tacitly admits the possibility that European States may introduce punitive damages; in general on this European regulation, see Vaquero López 2011, 683–691, in favor of applying punitive damages in European law. Of a general nature on the situation in Europe, see Koziol & Wilcox, 2009.
The enforcement of American judgments in Europe does not directly constitute the objective of our work, although it is an indirect consequence of the adaptation of punitive damages and their recognition in the constitutional law of the European legal orders. A question that has been put forward, especially in Germany; on this see Rosengarten 1994, following the judgment of the BGH, in 1992, which declared that the enforcement of the North American judgement that obliged payment of punitive damages was contrary to public order, and only payment of the amount necessary to compensate the damage caused was accepted. I understand that this reference to public order is not enough in itself, but that a substantive reason must be found to refuse execution (on a similar line, see Mörsdorf-Schulte 1999, at 49). The evolution of punitive damages in the United States, which is examined here, has led some authors to reflect on the possibility of less stringent German jurisprudence, insofar as it refers to the enforcement of sentences; see Klode 2009, 1927; Behr 2003, at 155: “It is necessary to reconsider the German attitude toward enforcement of foreign punitive damages awards”, who adds that: “As a general rule, punitive damages awards are unenforceable because they are deemed a violation of German public policy” (citing note 259 Judgment of the German Supreme Court BGHZ 118, 312 (338–51). However, the author highlights that “This basic rule is so widely established and accepted that plaintiffs’ attorneys no longer try to seek enforcement of such awards” (ibid.). Another matter is that the law simply does not authorize it (see art. 40.3 BGB German Civil Code), in which case, the rationality of such a legal criterion should be questioned. The refusal to enforce United States sentences in matters of punitive damages should, if coherent, lead to the refusal to enforce other types of sanctions such as those mentioned, when they come from other foreign courts and, particularly, the United Kingdom, a country within the European Union that is also familiar with the institution (and potentially any other, specifically in the framework of European competition law).
Employing similar arguments, Italy has also refused to enforce judgements delivered in the U.S.A. that impose punitive damages: see Corte app. Venezia, 15 oct. 2001, n.1359, Giur. It. II 2002, 1021, quoted by Quarta 2008, n. 1 and the literature therein.
In Spain, the question has been raised on very few occasions, despite its potential importance (see ATS 13 November 2001 [JUR 2002\608], exequatur process, in which, even when recognition was forthcoming for the punitive nature of the damages fixed in the sentence, enforcement of which was requested, the aforementioned exequatur was granted).
See, nevertheless, cases that recognize punitive damages in relation to physical persons in the United States in Koenig and Rustad 1998, 294 and nn. 55, 56 and 57, for example, in areas that come under criminal law, such as physical violence and intrafamily sexual violence.
Article 31 bis Spanish Penal Code establishes in a general way the criminal liability of legal persons indicating that «1. In the cases foreseen in this Code, legal persons will be criminally liable for the crimes committed, on their behalf or to their benefit, by natural persons having power of direction as representative or authorities of the same, either to take decisions in its name or to control the functioning of the society. In the same cases, legal persons will be also criminally liable for crimes committed, in the exercise of social activities and on behalf and in benefit of these legal persons, by whoever, being subjected to the authority of the persons mentioned in the prior paragraph, has been able to carry out the facts because the due control over him has not been exerted. 2. Criminal liability of legal persons will not exclude the liability of the natural persons referred to in the prior point, just as liability of individuals will not exclude liability of legal persons. When as consequence of the same facts a penalty of fine is given to both, judges or courts should adapt the respective amounts in such a manner that the resulting sum is proportionate to the seriousness of these facts. 3. When circumstances modifying criminal liability (exculpatory, mitigating or aggravating circumstances) concur in the persons that have materially carried out the actions or in the persons that have made the actions possible for lack of control, these circumstances shall not exclude nor modify the criminal liability of legal persons, without prejudice to the provision of following point n. 4 » (translation taken from Follow-up Report on the implementation of the phase 2 recommendations on the applications of the Convention and the 1997 revised recommendation on combating bribery of foreign public officials in international business transactions (OECD 2008); with regard to the new Spanish system see Gómez Tomillo 2010, passim.
See Finch 2002, 534–541; Pace 1997, at 1578 and ff.; Mallor and Roberts 1999, at 978; Romero 2008, 113 and passim; Schlueter 2005, at § 2.1; Ellis 1982, 3, who underlines that nature in the cases in which part of what is obtained should be given to the State. This is the view that emerges from the North American Supreme Court, for example, in Browning-Ferris, 492 U.S. at 297 (O'Connor, J., citing Supreme Court cases recognizing criminal law nature of punitive damages); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, at 417 (2003), where he maintains that punitive damages “serve the same purposes as criminal penalties”; later jurisprudential references may be seen in Sharkey 2003, n. 144.
The terminology used by some authors is quasi-criminal, see López 2001, at 1024; Schwartz et al. 1999, 1004; Seltzer 1983, 43; Koenig and Rustad 1998, passim.
From an historical viewpoint, it has been underlined that they first appeared to compensate the victim of moral damages, emotional suffering and bodily harm that could not be compensated by other means (in this respect, see Mallor and Roberts 1999, at 973 and the literature they cite; Behr 2003, at 159: “punitive damages awards may be enforced only to the extent that they constitute damages for pain and suffering, which, under German law, are considered to be compensatory”; see Ellis 1982, at 3, who refers to cases of slander in which damage is not easily quantifiable; Owen 2010, 181, who underlines its character as an instrument of private law, in contrast with the view of Dan Markel.
See Ellis 1982, at 3; Crump 1998, 182, where that view is criticized; Dobbs 1998 at 888–908, where it is proposed that punitive damages be abandoned in favor of a system that uses the right of damages as compensatory, at the same time that the costs of the defense should be sufficient for the purposes of prevention, which bring it much closer, in a sense, to the European system, see Murphy 1998, 472 and passim, who suggests that only individuals should obtain those costs from the process; having concluded, the State would act against the defendant, demanding payment of punitive damages to the State. The costs of the process are one of the factors that have led some to argue that punitive damages are of a partially compensatory nature; see, e.g., Welke 2008, 61–2, who adds the fact that the system of social protection is much weaker in the United States than in Europe, such that the system of punitive damages provide protection to the defendant in much the same way that the State usually provides it in Europe. See also Behr 2003, at 122: “Punitive damages have been used at least in part for compensatory purposes. This additional, compensatory function of punitive damages does not bridge the gap between a monistic, compensatory system of damages and a dualistic system. But it could narrow the gap to a degree such that a monistic system at least in part could accept punitive damages awards”. In the United States, a similar approach is that of Calandrillo, who contends that punitive damages are quasi-compensatory, to the extent that they serve to compensate those individuals when redress is not otherwise available under governing law (2010, 802), which leads him, in all coherence, to point out that the name punitive damages is in itself “a misnomer” (id., at 817).
Mallor and Roberts 1999, at 986.
See, e.g., Koenig and Rustad 1998, at 314ff.; Ellis 1982, at 76; Pace 1997, at 1580; Schlueter 2005, at § 2.2. The Model Punitive Damages Act, in fact, defines punitive damages as an award of money made to a claimant solely to punish or deter (s. 1.2). The North American Supreme Court confirmed as much, for example, in Pac. Mut. Life Ins. Co. v. Haslip (499 U.S. 1, 19 (1991). Nevertheless, there are those whose inclination is to prefer the retributive function, whereas others prefer the deterrent function. The retributionist perspective is highlighted, e.g., by Sabatino 1997, 209–210, at the same time as he analyzes the reasons why they are not imposed on public law entities: see Markel 2009a, passim for reflections on the relation between retribution and punitive damages. The deterrent perspective frequently arises from an economic analysis of law, Crump 1998, at 182 and ff.; Cooter 1997, passim; Polinsky and Shavell 1998, especially 873–76.
More complex examinations are made by others; thus, Owen subdivides punitive damages into five functions: education, retribution, deterrence, compensation, and law enforcement; see Owen 1994, at 373–81.
Certainly, one starting point could be to determine what is understood by sanction, to go on to see whether it fits the scheme proposed for punitive damages. However, this would imply returning to a point in the arguments that would make the study unviable, given that such a question in itself is more deserving of a doctoral thesis. We can only begin with a premise in the Aristotelian sense, of the idea according to which the essential element of a sanction is the privation of a person’s rights, arising from the prior commission of an act envisaged in law, which serves as a deterrent (excluding retribution, therefore).
The possibility may be considered of applying punitive damage tests as developed by the U.S. Supreme Court in Kennedy v. Mendoza-Martínez (372 U.S. 144 (1963), which considers seven factors to determine whether a certain conduct is or is not criminal behavior: 1) Whether the punishment involves an affirmative disability or restraint, (2) whether it has historically been regarded as a punishment, (3) whether it comes into play only on a finding of scienter, (4) whether its operation will promote the traditional aims of punishment—retribution and deterrence, (5) whether the behavior to which it applies is already a crime, (6) whether an alternative purpose to which it may rationally be connected is assignable for it, and (7) whether it appears excessive in relation to the alternative purpose assigned (id. at 168). However, as previously stressed, our objective here is not the study of what should be understood by punishment or sanction. For a study of the aforementioned judgment, see Cheh 1991, 1357–1360, who, however, highlights that not even the Supreme Court itself has seriously applied such parameters.
See Mann 1992, at 1813, who underlines in relation with punitive civil sanctions, including punitive damages, that North-American jurisprudence has been using “fictional approaches to deny that these punitive civil sanctions constitute punishment, the courts have avoided burdening such sanctions with the procedural barriers of the criminal law”. It is a point of view that he develops and criticizes throughout the work. Thus, for example, he indicates that, “Even where money sanctions are relatively small, an appropriately focused functional analysis should recognize that they are imposed not only to defray costs but also to deter and punish” (id., at 1837).
In Spanish civil-law literature, it has on occasions been underlined that the recognition of the sanctioning nature of punitive damages should be coupled with a level of guarantees close to criminal law; in this respect, see the references provided by Olmo, 2009, p. 139.
Koenig and Rustad 1998, at note 97.
I use the expression civil or “administrative” offences interchangeably. Although no exact correspondence exists with the categories used in the United States, I refer to what in Spain are called “infracciones administrativas” and in Germany “Ordnungswidrigkeiten”, offences sanctioned by the Administration, normally with fines. It is also an expanding field in the United States, the nature of which is debated. In the United States, especially after United States v. Halper (490 U.S. 435 (1989), its criminal nature is gaining ground (in general, on this case, and on these infringements see Mann 1992, at 1841–1842). In Europe, the viewpoint, according to which criminal offenses and these administrative infringements have the same juridical nature, also prevails (see Gómez Tomillo and Sanz Rubiales 2010, Chap. II; Jescheck & Weigend 1996, § 7, V, 3, where ample bibliographic information is provided on the state of the question).
On the contrary, I understand that forfeiture, especially of earnings, is a civil matter. However, it requires an in-depth treatise that cannot be done here.
The idea proposed here appears among some Italian authors in a tangential form and usually with no mention of punitive damages. Thus, some have spoken of an authentic criminal subsystem that would form part of a superior dogmatic category, consisting of offenses under public law that would encompass both criminal and administrative matters in their various forms and would contrast with civil offenses (Siniscalco 1983, 24 and 150, probably influenced by Kelsen. However, Siniscalco makes it clear that the distinction between public and private wrongdoing refers back to the differences between public and private law, which today have been overcome (id., p. 139). In a similar sense, Nuvolone, in the context of the legal consequences upheld that punishment and administrative infringements are no more than species of a common genus: punitive sanctions, Nuvolone, 1969, 63 and ff.). Some Spanish authors also suggest a similar approach; Nieto 2005, 26 and ff., 32, 86, 191; Marina Jalvo 2006, where some further references are provided. These works, however, argue in favor of the independence of sanctioning civil law with regard to criminal law.
I understand that punitive damages should be included in that punitive law of the State. As explained infra, it can not be maintained that punitive damages constitute an exception to the punitive monopoly of the State, insofar as they are imposed by the State, albeit in favor of a third party.
For example, in certain hypotheses concerning manslaughter, infection with sexually transmitted diseases—AIDS—sexual harassment and physical and intra-family sexual violence.
Which is clearer in federal legislation, for example, in matters concerning defense of competition, patents and brands, where the intervention of criminal law is limited to civil law systems.
As Helmut Koziol suggests, 2008 at 760.
Thus, it is particularly significative that in the United States of North America there is a tendency to construct a criminal offense for each unlawful infringement of federal regulations, to such a point that infringement of any one of 300,000 federal regulations will be treated as a criminal offense: in this respect, see Coffee 1991, 216, n. 94; by the same author, 1992, 1880, on the basis of establishing a criminal wrong for all infringements of the regulations of administrative agencies. Nevertheless, the expansion of civil punitive offenses experienced in the United States, parallel to European administrative sanctioning law (Ordnungswidrigkeitenrecht and Verwaltunsfrafrecht in Germany) has also been highlighted, see, among others, Mann 1992, particularly at 1798, 1848 and ff.
Consider that in some jurisdictions, not all the offenses are likely to be committed by legal persons; the attempt to commit a crime is not applicable to certain offenses; there are special rules on complicity in some areas, not all offenses have to tried before a jury court, etc.
With regard to administrative infringements in the United States, see particularly Cheh 1991, at 1352 and subsequent bibliography cited in n. 147; the aforementioned author, however, is inclined to apply the procedural guarantees of the Constitution only to criminal proceedings in the strict sense, while she proposes an expansion of the materials and particularly protection against double jeopardy and excessive fines, as well as freedom from self-incrimination (especially 1370–1373); in the specific field of punitive damages Sunstein 2002, 242, 248 and 252–3 goes even further: “juries should decide questions of civil liability, just as they do questions of criminal liability”. More generally, see Koenig and Rustad 1998, passim, especially, at 343 and ff., defending the introduction of a system of guarantees, especially procedural, half-way between the characteristics of criminal law and those of civil law.
At this point, I would fit in the most widely held opinion in jurisprudence and in academic thought in Europe, according to which crimes and civil infringements are of an identical juridical nature; see infra note 129 on this last point, see Gómez Tomillo and Sanz Rubiales 2010, at Cap. II; Jescheck & Weigend 1996, at § 7, V, 3, where ample bibliographic information is provided on the state of the question.
In that context, more extensive development of so-called civil law has been proposed, which in Europe would be administrative sanctions, to the detriment of penal law (Mann 1992, passim); criticisms of this arrangement spring to mind, among others, the limitation of the guarantees that it would entail for individual citizens (Coffee 1992, 1885). In relation to punitive damages, Markel (2009b , passim and especially n. 148, among other works by this author) may be highlighted, who argues that punitive damages are qualitatively different from criminal sanctions, taking the view that they are not associated with the same degree of stigma. This view is contingent on changes in social perception, because if the social perception of punitive damages changes, will their juridical nature also change? On the other hand, the stigma associated with punitive damages is questioned in the United States (for a criticism of stigma as a criterion for differentiation between civil and criminal matters, see Cheh 1991, at 1352–1354). In effect, the question that springs to mind is whether a small criminal sanction carries with it less stigma than significant punitive damages.
Silva Sánchez 2001. In the field of civil sanctioning law, Lozano Cutanda argues that there is a relation between rigor in the demand for such constitutional safeguards and the seriousness of the sanction to be imposed (Lozano Cutanda 1997, 64 and ff. and especially 66), even though the author herself points out that such principles may only be weakened, never eliminated all together.
Ibid. Silva Sánchez. See utilitarianist arguments expressed in terms of socio-economics, in Cid Moliné 1996, 148–9 and passim, where it suggests that more moderate guarantees would mean fewer people are sanctioned and a greater possibility of being unjustly sanctioned, but such costs would be—at least in cases in which sanctions are of minimum seriousness- very inferior to those that would come from maintaining a system of basically criminal sanctions with the utmost guarantees. Similar arguments are talked over in North American circles: see Mann 1992, at 1870, although centered on procedural more than material safeguards: “The more severe the sanction, the more the procedure must protect against the sanctioning of the innocent, and (2) the more it must protect the accused’s dignity and privacy. The logical and normative implications of these ideas are that the criminal sanction should be contingent on the use of the most stringent procedural rules and that punitive civil sanctions do not demand equally strict procedures”. In a similar sense, see Markel 2009a, especially at 1429–1430.
Id. Silva Sánchez, 155.
His proposal is quite close to that of Hassemer in Germany, centered on what has been called the Frankfurt school (on that school, and showing its heterogeneity, see Wohlers 2000, 51 and ff.; Feijoo Sánchez 2006, 140 and ff. Based on a very schematic vision, from Hassemer’s viewpoint, it is necessary to control the unchecked expansion of criminal law that should be reduced to a nuclear criminal law characterized by the protection of individual legal goods (Hassemer 1973, 206 and ff.); see also, Schünemann 1996, 191 and ff. Even Hassemer manages to propose a law of intervention (Interventionsrecht), half-way between criminal law and civil sanctioning law, with the intervention of judicial power, less intense guarantees than in the criminal field and a less onerous punitive reaction that would not have the stigma attached to criminal offenses, to which many of the behaviors nowadays typified in criminal law could be channeled. (see Hassemer 1998, 40, among other works by this author). Despite their criticism of the initial assumptions of this current of thought Martínez-Buján Pérez, appears to accept this new sector, although with a different content than that proposed by the author (1998, p. 29). Similar attempts to those described in the text appear in the United States of North America, except for the great differences that exist between European continental systems and those from the Anglo-Saxon legal tradition: on this, see Mann 1992, at 1861 and ff.).
Subsequent considerations, linked especially to administrative infringements may be found in Gómez Tomillo and Sanz Rubiales 2010, at Cap. II.
Besides, the question of the “objective” limit remains, between what is considered slight and, consequently, susceptible to a reduction in guarantees, and what is considered serious that implies more guarantees. In this respect, it can not be forgotten, for example, that in administrative sanctioning law the Scandinavian system of day-to-day fines, which allows the pecuniary sanction to be adjusted to the financial possibilities of the offender, has not been generalized. Thus, the possibility that a smaller fine be imposed on a person of scant acquisitive power implies a very high subjective sacrifice. Under these circumstances, such a subject, would undoubtedly demand higher levels of guarantees to protect against arbitrariness; guarantees that should likewise be granted to avoid inequalities.
In the United States, the criterion of the gravity of the punishment to distinguish between civil and criminal cases is rejected as unfeasible: see Cheh 1991, at 1330–1331, 1351.
The variety of punitive responses in the hands of the Administration in the United States is highlighted in Cheh 1991, especially at 1337–1338.
Bear in mind that when deciding on the most favorable criminal law, it is frequently in Europe that the opinion of the defendant is sought; for instance, in some cases of the retroactive application of a criminal law he is asked which sanction he prefers: the old or the new one; on this, see article 2.2 of the Spanish Penal Code. Ergo, the gravity of a sanction cannot be objectified and may only be approached from a subjective perspective: from the point of view of the subject that suffers it.
Moreover, the sanction of expulsion from national territory may be considered. There is no doubt that in a wide number of circumstances, such a possibility may be considerably more detrimental than limited privation of liberty.
In similar terms, see Cheh 1991, at 1350.
The legal certainty principle (in Spanish, the principio de taxatividad and in German, Bestimmtheitsgrundsatz).
Silva Sánchez 2001, at 151–2. See a different point of view to the text in Cid Moliné 1996, at 136 and ff. However, I fail to share the proposal made by this author, who justifies lower levels of guarantees with regard to administrative sanctions, rejecting the argument that a similar severity of sanctions in either one or the other order do not fit in well with different levels of guarantees; to do so, prison sentences set against pecuniary fines of little relevance, while comparisons with other sanctions, where the difference is much more questionable, are disregarded; however, it is not very clear why the observation that there are sanctions of different severity in the Spanish legal order is sufficient to reject the thesis that the level of guarantees should in any case be as high as possible, as I maintain in this paper, regardless of considerations of a socio-economic nature (see, p. 137).
See an identical view to the one held here, in Roxin 2006, § 5, 68, criticizing a certain doctrine of the German Constitutional Tribunal, in favor of limiting the application of the legality principle, when the seriousness of the sanction is lower. See a list of authors that declare themselves in favor of equality of guarantees, in Cid Moliné 1996, at 133, 136, n. 7, and 136–7, n. 9; see his defense of the differentiating thesis, above all p. 136–7.
Other considerations especially linked to civil offenses are made in Gómez Tomillo and Sanz Rubiales 2010, at chapter II.
See the case of Engel and others v. Holland, 8 June, 1976, and ample references in Pepe 1990, 40, n. 68.
See, likewise, case of Benham v. United Kingdom (ECtHR 7/1995/513/597), among others; however, on other occasions an opposing criterion is applied: see Putz v. Austria (ECtHR 57/1994/504/586). On this topic, see Maugeri 1999b, 531 especially n. 23.
See Maugeri 1999b, at 536 with subsequent bibliographic references; the author, nevertheless, highlights some circumstances in which she considers that the Court has not been coherent in terms of the proposals it has made.
Very significatively, the cases proposed by Mallor and Roberts 1999, at 988, where criminal sanctions imposed on legal persons are compared and the very much heavier punitive damages imposed for the same facts.
See Crowley (2001).
On this possibility in the United States, see., e.g., Cheh 1991, at 1335 who develops a similar argument at 1369.
One of the recurrent criticisms in, for example, German literature and jurisprudence; see, in this respect, among others, Brockmeier 1999, 105 and ff.; Mörsdorf-Schulte 1999 at 31 and ff., 48–50, etc.; see also the German decision of 1992 refusing to enforce a US punitive damages award for child abuse (BGHZ 118, 312): «Auch die Erwägung, dem Opfer als Kläger eine Vergünstigung zukommen zu lassen, findet ihre Erklärung in einem Verständnis des Privatrechts als Lebensordnung mit generalpräventiver Wirkung … Das ist nach deutscher Rechtsauffassung mit dem Bestrafungsmonopol des Staates und den dafür eingeführten besonderen Verfahrensgarantien unvereinbar » .
It has been highlighted that the courts in the United States have hardly concerned themselves with the problems of the constitutionality of punitive damages until very recently, the only available material being limited academic studies; Schlueter 2005, at §,3.0. The ECtHR has been rejecting applications for it to recognize such punitive damages submitted by States in various proceedings conducted before it (see, among others, the cases of Selçuk and Asker v. Turkey, 24 April 1988; Lustig-Prean and Beckett v. United Kingdom, 27 September, 1999; İkincisoy v. Turkey, 27 July 2004). However, it has not questioned their adaptation to the European Convention of Human Rights in Rome, 1950.
Nevertheless, my point of view remains unchanged: they should observe the same system of guarantees that limit arbitrariness. I insist that respect for the same principles as exchangeability of rules is not the same thing. On the question of procedural guarantees, especially in connection with punitive damages, among others, Wheeler 1983 at 323 and ff. (in favor of increasing procedural guarantees); Markel 2009a, at 1436–1450 (against equalizing procedural guarantees). As stated above, it is a question of aspects that have deserved more than ample attention in North American literature and jurisprudence. Thus, to give one example, the burden of proof has been widely discussed. If, as is well known, in criminal law, proof is required that is beyond all reasonable doubt, the courts are satisfied in the context under study with an intermediary test that is less inclined toward guarantees: clear and convincing evidence (thus, see Model Punitive Damages Act, s. 5.a) 2; only Colorado expressly requires evidence beyond reasonable doubt; see Rustad 2005, at 1324); in general, on this question, Schlueter 2005, at § 3.11 B. Likewise, it should be considered that a jury imposes those punitive damages; see, among others, Sharkey, (1996), who, however, contends that judges should do so; Cooter 1997, II, who criticizes throughout his work and on the basis of the economic analysis, the absence of detailed instructions to the jury deliberating the imposition of punitive damages (passim); on the same lines, in favor of limiting the possibilities of the jury to impose sanctions, see Crowley 2001, especially at 1534 and ff.; in a similar sense, see a particular vote of Judge Breyer in the case BMW v. Gore. In general, on this matter, Sunstein 2002, at 248–9.
It is worth noting that in Europe, it is considered that strict liability offences are incompatible with the Constitution; it is required, at the very least one, or a combination of intention, knowledge, recklessness or negligence. It is understood that it would be incompatible with the idea of the dignity of the person, which underlies the entire legal order, as well as the constitutional prohibition on inhuman and degrading treatment. In Germany, there is no doubt about this: see, among others, Jescheck & Weigend 1996, at § 4, I, 1. At a European level, it should be underlined that the ECtHR accepted the legitimacy of penal norms in the Hansen case, specifically in the aforementioned case in Denmark, that envisaged the strict liability of the employee for the acts carried out by the employee. In this sentence, the ECtHR maintained that strict liability is admissible because it relates to general interests, to the system in force in Denmark on the protection of the workplace and is proportionate to the seriousness of the violation committed (Sentence of 10-7-1990). In some other judgments, the same Court has ambiguously admitted cases of strict liability (see Maugeri 1999a, at p. 961). It is a jurisprudential line that is considered reprehensible in academic circles, and incompatible with human dignity; nevertheless, as has been shown, the principle of culpability is raised to a constitutional level in most European legal orders (id., Maugeri, at 964 and ff.; Bohnert 2006, Einleitung, 116; Gómez Tomillo and Sanz Rubiales 2010, at Chapter 14, 2; of a more general character, in relation to the eventful history of the principle, see Ferrajoli 1995, 487 and ff.
For the same reasons, in general terms, vicarious liability is prohibited, as a form of strict liability.
It has been said that the standards for the imposition of punitive damages fluctuate from the requirement for malice in three states, to that of gross negligence in five states, including intermediary situations in another twenty-five states; see Mallor and Roberts 1999, at 981; Ellis 1982, at 20; Sabatino 1997, at 209. However, as against merely culpable behavior, where there is no mention of the potentially damaging consequences, legal scholars have highlighted that it is neither advisable nor effective to apply punitive damages (Rubin et al. 1997,186 and ff. where various opinions may be found). In a similar sense, see the situation in the United Kingdom in Wilcox 2009, 12–13 and 20–21.
A general vision of the latest claims against legal persons may be seen in Crowley 2001, especially at 1523 and ff.
See, e.g., Ellis 1982, at note 266.
Gómez Tomillo 2010.
See, e.g., Model Punitive Damages Act, s. 6; Ellis 1982, at note 266, where it underlines that most states adhere to the standard respondeat superior; others, however, opt for the complicity rule, according to which firms are only responsible if there is proof that the conduct was because of a managerial agent; see Rustad 2005, at 1309.
See M. Gómez Tomillo 2010.
In the United States, as is well known, the idea is widely upheld that penal responsibility of legal persons is vicarious, see now only Gruner 2010, § 1.02; Pollack 2009, particularly, 1395–6, with critical considerations; Gobert and Punch 2003, 55 and ff.; Wells 1993, 97 and ff. especially with respect to the historic evolution and where it underlines the many limitations placed on vicarious responsibility in English law in force, above all due to connection between vicarious liability and strict liability. The same criticism is frequent in Europe. See, e.g., Fernández Teruelo 2010, 57. For ample references with regard to both vicarious liability and independent liability, Zugaldía Espinar 2008, 140 and ff.; Nieto Martín 2008, 102 and ff.; Robles Planas 2006, 5 and ff.; critical of the vicarious model; Silva Sánchez 2002, 126 and ff.; on the same critical lines Gómez-Jara Díez 2006, 1 and ff.
See Mallor and Roberts 1999, at nn. 7 and 17, as well as the bibliography cited below in connection with specific problems.
See the bibliography that is cited infra III, when the problem is examined in detail.
The question was raised, for example, in TXO Production Corp. V. Alliance Resources Corp. (509 U.S. 443), where the U.S. Supreme Court concluded that such a principle was not violated, insofar as the notice component of the due process clause is satisfied, if prior law fairly indicated that punitive damages awards might be imposed in response to egregiously tortious conduct. See, likewise the references made on this matter in BMW of North America, Inc. v. Gore en § 3.4, n. 126; Pacific Mutual Life Ins. v. Haslip, 499 U.S. 1. The majority of authors have considered that the requirements for due process of law arising from the Fifth Amendment are applicable to punitive damages and, in particular, the requirement that the person would have had the possibility of learning about the wrongful conduct before a criminal sanction; see Schlueter 2005, at § 3.11 (A). A good example may be Model Punitive Damages Act, S. 5 a) The trier of fact may award punitive damages against a defendant if: (1) the defendant has been found liable for a legally recognized injury which supports an award of punitive damages under the law of this State.
On the various doctrinal views developed to clarify the constitutional prohibition of vague criminal laws, see, among others, Roxin 2006, at § 5, 68 and ff.
In Germany, see Brockmeier 1999, at 123, who, however, rejects such an opinion. What is certain is that the Due Process Clause of the Fifth Amendment requires that accused be made aware of the illegal behavior before being sanctioned for such behavior, such that a statute can be made annulled on the basis of the void for vagueness clause, when it fails to provide the information in a reasonably understandable way to the person to whom it applies. This doctrine applies to both civil and criminal procedures, including proceedings for punitive damages (see Schlueter 2005, at § 3.11 A).
For example, in reference to fraud, it has been considered that it has a vague content that is hardly profiled, (see Schlueter 2005, at §, 9.7. (A), p. 563, where cases of fraud are cited, among them the case of BMW; see, also, Ellis 1982, at 34, who maintains that the criteria for assessing punitive damages are imprecise, referring to the subjective field, with respect to the definition, for example, of recklessnes or of malice. Johnson 1999, see note 127 for arguments in support of accepting the criteria of criminal law with regard to states of mind (specifically in reference to recklessnes).
See Gómez Tomillo 2011, art. 5.
Among others, see Schlueter 2005, at § 4.2 (A) (2).
See, the referential works on the topic which contain lists of concrete cases of tort in which claims for punitive damages are possible; see, e.g., Schlueter 2005, at § 9.0, who, however, questions whether the standards required in criminal law are exceeded (id. § 3.11 (A), in fine); Kircher and Wiseman 2000, at § 5.1. From the jurisprudential point of view, the particular vote of justice Breyer in BMW v. Gore also questions whether punitive damages respect the rule of law. However, the criticism is formulated because of the absence of clear instructions to the jury that limit their discretion and ensure minimum predictability for claimants and defendants.
See, e.g., Sabatino 1997, at note 91 and the list of cases cited by him.
See, among others, López 2001, at 1024.
Academics in the United States have upheld that a system that permits the application of punitive damages without knowing a priori the maximum amount for which one may be sanctioned is incompatible with the principle of legality; see, among others, e.g., Romero 2008, at 117, who, likewise, suggests incompatibility with the principle of equality, insofar as identical behaviors are sanctioned in various ways; Elliott 1989 at 1057, who points to it as the main drawback encountered by punitive damages. Beyond the U.S.A., the compatibility of punitive damages with the penal guarantee by Koziol 2008, at 756; see also, Brockmeier 1999, at 122, who, nonetheless, rules out the application of art. 103.2 of the German Grundgesetz to private sanctions, which is relevant from the point of view of the recognition of U.S. judgments in this matter.
See Rustad 2005, at 1332.
Wheeler 1983 at 279 provides information on this point.
See Ellis 1982, at note 221, where it is made clear how subsequent criteria were added later on, limiting the discretionality of the jury, which is discussed in the following paragraphs.
Koenig and Rustad 1998, at 297.
See, e.g., Toy 1991, at 324–5.
See the relation that Rustad provides, (2005, at 1329 and ff.; 1338 and ff.). Such limits do not appear in the federal legislation, where there was a draft law along these lines, vetoed by President Clinton, called Common Sense Product Liability Legal Reform Act of 1996; on this, see Koenig and Rustad 1998, at note 30.
517 U.S. 559 (1996).
The criteria of BMW were subsequently repeated in Cooper Industries, Inc. V. Leatherman Tool Group, Inc. (532 U.S. 424 (2001). Besides, the Model Punitive Damages Act sought to draw up various new milestones (see S. 7 a); among which, the first three are taken textually from BMW of North America, Inc. v. Gore. Points four and five may be considered particularly meaningful, which respectively refer to present and future financial conditions of the respondent and the benefits obtained from the wrongful conduct. Specifically, they refer to 4) the defendant’s present and future financial condition and the effect of an award on each condition; (5) any profit or gain, obtained by the defendant through the wrongful conduct, in excess of that likely to be divested by this and any other actions against the defendant for compensatory damages or restitution.
Criteria have been proposed by various academics such as the reprehensibility of the conduct of the defendant, the amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant’s financial condition, that the punitive damages must bear a reasonable relation to the actual damages; see Ellis 1982, at 53–54 and note 221; with regard to the relation with actual damages, see, likewise, Mallor and Roberts 1999, at 996, who propose: Severity of Threatened Harm; Degree of Reprehensibility of Defendant’s Conduct; Profitability of the Conduct; Financial Position of the Defendant; Amount of Compensatory Damages Assessed; Costs of Litigation; Potential Criminal Sanctions; Other Civil Actions Against the Defendant Based on the Same Conduct. See also Calandrillo 2010, at 821, who proposed that the actual damages be multiplied by the inverse of the probability of detection.
Gracia Martín 2006, 187, quoted in the German literature by Stree, which considers that such a possibility is in accordance with the legality principle, as it is only apparently indeterminate.
538 U.S. 408 (2003).
“Few punitive damages awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy Due Process”. The academic literature on Campbell is interminable; on this, see, among others Hines 2004.
The view is subsequently reaffirmed in Exxon Shipping Co. V. Baker (554 U.S. 471). Logically enough, the academic literature based on this last case is interminable; notable examples, e.g., Hersch and Viscusi 2010, who point out that the 1:1 ration will operate as a ceiling, but also as a floor, which will imply an increase more than a decrease in the amounts that are awarded. However, the question does not end there, insofar as the Court has yet to deal with cases in which serious lesions or deaths have occurred, as in Philip Morris USA v. Williams (549 U.S. 346 (2007), circumstances in which doubts emerge over whether the ratio is or is not appropriate. In the aforementioned case, using the criterion that it is not correct to consider damage to third parties as a parameter to determine punitive damages, the case was referred back to a lower court, but that has done nothing more than put the problem off (in this respect, see, above all, Mark A. Geistfeld, (2008); Calandrillo 2010, at, 815, who criticizes the Supreme Court criteria insofar as when a subject does not litigate there will be a preventive deficit. This last point of view does not consider, however, the existence of other punitive instruments and, particularly, criminal law.
See, for example, the situation in Kansas in which the limit is established for a smaller amount between five million dollars or the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded. Nevertheless, it allows an exception in cases in which the defendant expected benefits that exceed such maximums, in which case they can impose 1.5 times the defendant’s expected benefits as a consequence of his conduct; on this and other positive limits, see, e.g., Toy 1991, at 334.
The question of the adaption of punitive damages to the principle of proportionality is decisive, from the point of view of the potential enforcement of U.S. judgments in Europe. Bear in mind that it has been argued that “eventually, modern developments in German courts toward awarding what in substance are punitive damages in line with restrictions on excessiveness of U.S. awards could result in a compromise, which could enable German courts to openly enforce punitive damages awards as long as amounts are not excessive” (Behr 2003, at 160).
See, among others, Roxin 2006, § 3, I, 58; Sánchez García de Paz, 1994, 1 and 2. With regard to the demarcation between reasonableness and proportionality, see the excellent monograph by Mata Barranco, 2007, 99 y ss.; Aguado Correa 1999, 120 and ff., who connects the principle of proportionality with that of legality. In Spanish constitutional jurisprudence, see the Judgments of the Constitutional Court (Sentencias del Tribunal Constitucional) 136/1999, of 20 July and 161/1997 of 2 October which connect with the idea of justice, proclaimed in article 1 of the Spanish Constitution as the highest value of the legal order, flowing from the idea of the rule of law, linked to the idea of human dignity, the prohibition of inhuman and degrading treatment and the legality principle itself. With regard to the ECHR requirement of proportionality, see Fernández Nieto 2009, which cannot be here properly resumed.
“…nor shall any state shall deprive any person of life, liberty or property without due process of law;” id. Pace, 1997 and ff. where an examination of various cases may be seen in which the Supreme Court encounters such criticism; Murphy 1998, at note 90; Sunstein et al. 1998, 2087; Massey 1987, 270–1272, who argues subjecting punitive damages to the constitutional prohibition of excessive fines taken from the 8th Amendment, especially from an historic viewpoint. It has, in fact, been affirmed that punitive damages have a high degree of mortality, given that they are habitually round down in judicial reviews of the amounts imposed by juries.
Rustad 2005, at 1330.
Criteria that may be seen in State Farm Mut. Auto. Ins. Co. v. Campbell (538 U.S. 408) at 419–428 (2003). On this question, fully, see Romero 2008, at 119 and ff.
It is well known that the German Constitutional Court construes the principle of proportionality, in a broad sense, as a limiting criterion on the actions of the State, whenever these affect certain fundamental rights. In accordance with this construct, three parameters have to be applied, in order to determine the application of this principle: a) appropriateness of the intervention to achieve the desired end, which in criminal law is none other than the protection of legal goods; b) the need for the measure to achieve that end; c) proportionality of the intervention in the strict sense, from the viewpoint of a comparison between the affectation of the right and the benefit obtained (see, e.g., Lagodny 1996, 10–11. This construct has exercised enormous influence over the constitutional jurisprudence of other European countries. Thus, with regard to Spanish jurisprudence, see Constitutional Court Judgments 136/1999, of 20 July and 161/1997 of 2 October (especially the former, Legal Grounds point 23) which express an identical point of view. From a comparison of the criteria applied, on the one hand, by the German and Spanish Constitutional Courts and, on the other, by the U.S. Supreme Court, proximity may easily be inferred between each one. That proximity is especially clear in some of the criteria that are employed, specifically with regard to what is known as the proportionality principle in the strict sense. In the context that concerns us here, it amounts to a need for proportion between the punishment and the crime: the requirement that the punishment in some way or other fit the crime that has been committed (poena debet commensurari delicto). This has led some authors to affirm that the tests used by both the German and the North-American courts are identical; in general on these questions see, amongst others, Aguado Correa 1999, 144 and ff.
In Spain, there is no such declaration in the constitution. However, art. 103. III Grundgesetz (Germany) does specifically cover it, despite which it is maintained that it is a necessary consequence of the principle of the Rule of Law, in various senses (see Bohnert 2006, at 135.
Schroeder, 1997, 227, this author goes so far as to affirm that its regulation is completely unnecessary.
Among others, article 14.7 of the International Covenant on Civil and Political Rights of 1966; article 4.1 of Additional Protocol 7 to the Convention of Rome for the Protection of Human Rights and Fundamental Freedoms of 4 May1950.
On the principle of non bis in idem, in extenso, see Gómez Tomillo and Sanz Rubiales 2010, at Chapter VII, where questions such as its foundation (linked to the principle of legality) and scope are approached.
See the North-American literature that is cited below. Outside the United States, see Welke 2008, 69 and ff. Evidence of how opinions vary on the matter may be found in the different solutions to the same problem found in the common law countries that accept punitive damages; more amply on this question, see Welke 2008, 69 and ff. and especially 79.
Welke 2008, p. 80; who upholds, precisely from that perspective, incompatibility with the prohibition of bis in idem (82–84).
However, not all the hypotheses of punitive damages simultaneously constitute criminal offences, as highlighted in this context Mallor and Roberts 1999, at 976, 985.
Thus, see Murphy 1998, at 545 and ff.
See, among others, Schlueter 2005, at § 3.9; in Spanish, López Herrera 2008, at 225. It can raise some paradoxes insofar as the penal punishment may be inferior to whatever arises from the punitive damages. I refer specifically to punishments for attempted offences. Whereas this is possible in the case of crimes, it will not be in the case of punitive damages, with the result that what is punished less, nevertheless implies an enlargement in the area for punishment.
See Mallor and Roberts 1999, at 971.
See United States v. Halper, 490 U.S. 435 (1989) that appears to exclude its application to punitive damages (id. at 251); see Murphy 1998, at note 200. Nevertheless, it should be remembered that Halper refers to a case of the accumulation of administrative and penal sanctions; I understand that he refers to, without mentioning as much, its application to punitive damages, Cheh 1991, at 1378: “If double jeopardy protects a defendant from double punishment, she should enjoy that protection even if one of the proceedings used to punish her was civil and not criminal”. Outside of the United States, similar arguments have been used; thus, she rejects the idea that punitive damages violate the constitutional prohibition of double punishment arising from German law in art. 103.3 Grundgesetz, insofar as punitive damages are not a punishment in the strict sense of this precept, Brockmeier 1999, at 130. I understand that the argument is not valid as it is of a formal character: materially, we are looking at punishments imposed by the State, hence they should be subject to the prohibition against double jeopardy. As is evident, the question should be couched in other terms when punitive damages are imposed by the State; see Finch 2002, at 539–540.
See Schlueter 2005, at § 3.9; Kircher and Wiseman 2000, at §3:2; Colby 2003, at 622, 636: “The historical understanding of punitive damages was that they punish the purely private wrong to the victim and, in so doing, also benefit the public, but the public benefit is, in a sense, a welcome incidental effect of the private punishment”
For a critical review of the proposal, see Zipursky 2005, 143–144.
See, e.g., Model Punitive Damages Act, s. 7 a) 3.
Which may be rejected in the case of punitive damages, at least from the perspective of the claimant. Restitutio in integrum would be fair, rather than as a consequence of the corresponding civil procedure the claimant had a more advantageous patrimonial situation than he had before. Obviously any restitutio in integrum should include the costs of the process.
As an example, article 382 of the Spanish Penal Code establishes that when bodily harm occurs as a consequence of a road safety offense, only the most serious conduct will be punished, in its upper half. We therefore face competing crimes that operate ex lege; i.e., both are considered wrongful: the one that harms individual legal goods as much as the one that harms supra-individual legal goods. Where such a rule does not exist, as in the case of crimes against public health, competing crimes are normally considered, which means that there are also multiple punishments to consider.
Which is possible, for example, in certain hypotheses of manslaughter; in cases of sexually transmitted illnesses, such as AIDS, or in circumstances of sexual harassment (which in the USA can lead to claims for punitive damages, see Schlueter 2005, at § 11), etc. See also cases of intra-family physical and sexual violence, where both their private and public interests are without question affected (Koenig and Rustad 1998, at 294 and notes 55, 56 and 57).
In Spanish law, the formula has been consolidated in accordance with which it is not possible to accumulate sanctions when a triple identity of subject, act and rationale concur (see the judgment of the Spanish Constitutional Court 2/1981, Fto. Jco. 4º). It is normally understood that the rationale refers to the legal goods that are protected by the rules that should be applied in the case under consideration.
Koenig and Rustad 1998, at 295. In England, the courts have been deliberating over precisely the possibility that the offense may have previously been sanctioned in order not to impose punitive damages, excluding, nevertheless, any mechanistic approaches to this class of decision making; in this respect, Wilcox 2009, at 28–29.
See Schlueter 2005, at § 9.5 (B); see, likewise, e.g., the Model Punitive Damages Act, s. 7 a) 3.
In general, on the question, see Gómez Tomillo and Sanz Rubiales 2010, at 205 and ff.); in the jurisprudence see the Judgment of the Spanish Constitutional Court (STC 152/2001), 2 of July. Some North-American proposals are not so very different, in as much as their hypothesis is that punitive damages precede the criminal punishment (Markel 2009b at 1460).
See Koenig and Rustad 1998, at 344.
It is impossible to summarize such a complex question here, but the arguments are endless, including reasons of an historic nature, permeability between both punitive systems, identity of legal consequences (with the exception of prison terms) and a very long et cetera. In this respect, see broadly Gómez Tomillo and Sanz Rubiales 2010, at Chapter II; in the North-American context, connecting with the topic that concerns us here, see Rubin 1998, supra note 129, particularly Part II of the work, 133 and ff., where he, quite rightly, dismisses the retributive function of civil penalties.
Let us recall that it has even been proposed in those cases that an obligatory class action should be set in motion, distributing whatever is obtained equally (Cordray, 1999, at 279, 281; see the list of proposals along the same lines provided by Frankel 2011, n. 5; in particular, this author is highly critical of such a possibility that would imply a defect of the preventive effect.
See Pace 1997, at 1611 and ff., which gives the example of Georgia, where recognition is allowed of only some punitive damages, a provision annulled by the federal courts; in the case of Florida, more than some punitive damages are prohibited for the same facts; whereas in other states the possibility is foreseen of reducing the total amount in view of the imposition of other damages in other jurisdictions (see Rustad 2005, at 1357).
See the panorama described in Kircher and Wiseman 2000, at § 3:2 in fine.
The topic is studied in Murphy 1998, at 545 and ff.
One of the arguments traditionally wielded in favor of punitive damages is that criminal law is not de facto oriented toward the punishment of white collar criminal conduct; on this, see M. Galanter; D. Luban, supra note 34 passim, especially at 1426 and 1443.
To the point at which it has been proposed that punitive damages be accompanied by a penalty consisting in the publicity of the conviction; see Curcio 1993, 341; see, however, another point of view that differs from that set out in the text, in Romero 2008, at 126. Cheh 1991, at 1352–1354 is critical of stigma being a criterion for differentiation between civil and criminal offenses.
See Ellis 1982, at 71 and ff., where he highlights that some jurisdictions allow it, using the argument that the dissuasory effect is achieved because the renovation of the insurance will be more expensive.
On this point, see, e.g., Owen 1994, at 399; Toy 1991, at 323 and ff.; Crump 1998, at 178; Rubin; Calfee; Grady, supra note 60 at 192 and ff. relating that consumers have to pay a higher price for products to pay for such sanctions. It is not clear to me that the criticism is valid because it is also transferable to civil and penal sanctions and they cannot be discarded for that reason.
It is said that there is no authentic automatic right to the recognition of punitive damages, but that they come under the discretional powers of the judge or the jury and that the Court or legislature may restrict or deny the allowance of punitive damages at will; Schlueter 2005, at § 2.1 (E) and jurisprudence cited therein.
Of course, it is a very common criticism in the United States, on this see, among others, Owen 1994, at 382 and ff.
As already made clear, this criticism is mitigated in cases in which what is obtained from punitive damages should be shared with the State.
In the United Sates, the point of view expressed is not completely unheard of among scholars; see Rubin, supra note 129, at 144 and ff.; Murphy 1998, at 472 and passim, who proposes that the individual only obtains the costs of the process; once concluded the State would act against the claimant demanding payment of the punitive damages to the State.
This point of view does not extend to the hypothesis of damage caused by rescinding contractual agreements.
References
Aguado Correa, T. (1999). El principio de proporcionalidad en Derecho penal. Madrid: Edersa.
Behr, V. (2003). Private law, punishment, and disgorgement: punitive damages in American and German Law- Tendencies towards approximation of apparently irreconcilable concepts. Chicago Kent Law Review, 78, 105.
Benatti, F. (2008). Correggere e punire: dalla law of torts all’inadempimento del contratto. Milano: Giuffré.
Bohnert, J. (2006). Karlsruher Kommentar zum Gesetz über Ordnungswidrigkeiten, 3 Auf. München: C.H. Beck.
Brockmeier, D. (1999). Punitive damages, multiple damages und deutscher ordre public. Tübingen: Mohr, Siebeck.
Calandrillo, S. P. (2010). Penalizing punitive damages: why the supreme court needs a lesson in Law and economics. George Washington Law Review, 78, 774.
Cheh, M. M. (1991). Constitutional limits on using civil remedies to achieve criminal Law objectives: understanding and transcending the criminal-civil Law distinction. Hastings Law Journal, 42, 1325.
Cid Moliné, J. (1996). Garantías y sanciones. (Argumentos contra la tesis de la identidad de garantías entre las sanciones punitivas). Revista de la Administración Pública, 140.
Coffee, J. C., Jr. (1991). Does “unlawful” mean “criminal”?: reflections on the disappearing tort/crime distinction in American Law. Buffalo Law Review, 21, 193.
Coffee, J. C., Jr. (1992). Paradigms lost: the blurring of the criminal and civil law models and what can be done about it. Yale Law Journal, 101, 1875.
Colby, T. B. (2003). Beyond the multiple punishment problem: punitive damages as punishment for individual, private wrongs. Minnesota Law Review, 87, 583.
Cooter, R. D. (1997). Punitive damages, social norms and economic analysis. Law & Contemporay Problems, 73, 60.
Crowley, M. A. (2001). From punishment to annihilation: Engle v. R.J. Reynolds tobacco Co.—No more butts—punitive damages have gone too far. Loyola of Los Angeles Law Review, 64, 1513.
Crump, D. (1998). Evidence, economics, and ethics: what information should jurors be given to determine the amount of a punitive-damage award? Maryland Law Review, 57, 174.
Curcio, A. A. (1993). Painful publicity—an alternative punitive damage sanction. DePaul Law Review, 57, 341.
de la Mata Barranco, N. (2007). El principio de proporcionalidad penal. Valencia: Tirant lo Blanch.
del Olmo, P. (2009). Punitive damages in Spain. In H. Koziol & V. Wilcox (Eds.), Punitive damages: common law and civil law perspectives. Wien, New York: Springer.
Dobbs, D. B. (1998). Ending punishment in “punitive” damages: deterrence-measured remedies. Alabama Law Review, 40, 831.
Elliott, D. (1989). Why punitive damages don’t deter corporate misconduct effectively. Alabama Law Review, 40, 1053.
Ellis, D. E. (1982). Fairness and efficiency in the law of punitive damages. Southern California Law Review, 56, 1.
Ellis, D. D., Jr. (1989). Punitive damages, due process, and the jury. Alabama Law Review, 40, 975.
Feijoo Sánchez, B. (2006). Sobre la “administrativización” del Derecho penal en la “sociedad del riesgo”. Un apunte sobre la política criminal a principios del Siglo XXI, Derecho y justicia penal en el siglo XXI. In Liber amicorum en homenaje al profesor Antonio González Cuéllar García. Granada: Comares.
Fernández Gregoraci, B. (2008). Recargo de las prestaciones de la seguridad social: un supuesto específico de punitive damages, Anurio de Derecho Civil, T. LXI.
Fernández Nieto, J. (2009). La aplicación judicial europea del principio de proporcionalidad. Madrid: Dykinson.
Fernández Teruelo, J. G. (2010). Algunas consideraciones críticas sobre el nuevo modelo de responsabilidad penal de las personas jurídicas. Revista de Derecho Penal, 31.
Ferrajoli, L. (1995). Derecho y Razón. Valladolid: Trotta.
Finch, M. (2002). Giving full faith and credit to punitive damages awards: will Florida rule the nation? Minnesota Law Review, 86, 497.
Frankel, R. (2011). The disappearing opt-out right in punitive-damages class actions. Wisconsin Law Review, 2011, 563.
Galanter, M., & Luban, D. (1993). Poetic justice: punitive damages and legal pluralism. The American University Law Review, 42, 1394.
Geistfeld, Mark A. (2008). Punitive damages, retribution and due process. Southern California Law Review, 81, 263 and ff.
Gobert, J., & Punch, M. (2003). Rethinking corporate crime. London: Butterworths.
Gómez-Jara Díez, C. (2006). Autoorganización empresarial y autorresponsabilidad empresarial, Revista Electrónica de Ciencia Penal y Criminología 05.
Gómez Tomillo, M. (2010). Introducción a la responsabilidad penal de las personas jurídicas. Valladolid: Lex Nova.
Gómez Tomillo, M. (2011). Comentarios al código penal (2th edn.). Valladolid: Lex Nova.
Gómez Tomillo, M., & Sanz Rubiales, I. (2010). Derecho administrativo sancionador. Parte general (2th edn.). Cizur Menor: Thomson-Aranzadi.
Gracia Martín, L. (2006). Tratado de las consecuencias jurídicas del delito. Valencia: Tirant lo Blanch.
Gruner, R. S. (2010). Corporate criminal liability and prevention. New York: Law Journal Press.
Hassemer, W. (1973). Theorie und Soziologie des Verbrechens. Ansätze zu einer Paxisorienterender Rechtsgutlehre. Frankfurt: Athenaum-Fisher-Taschbenbuch.
Hassemer, W. (1998). Perspectivas del Derecho penal del futuro, Revista Penal 1.
Heine, G. (1995). Die strafrechtliche Verantwortlichkeit von Unternehmen, von individuellem Fehlverhalten zu kollectiven Fehlentwicklungen, insbesondere bei Grossrisiken. Baden Baden: Nomos.
Hersch, J., Viscusi, W. K. (2010). Punitive Damages by Numbers: Exxon Shipping Co. v. Baker, Supreme Court Economic Review 259, 8.
Hines, L. J. (2004). Due process limitations on punitive damages: why State Farm won’t be the last word. Akron Law Review, 37, 779.
Ingraham, D. M. (1997). Note: civil money sanctions barred by double jeopardy: should the supreme court reject healy? Washington & Lee Law Review, 54, 1183.
Jescheck, H-H.,Weigend, T. (1996). Lehrbuch des Strafrechts. Allgemeiner Teil, 5 Auf.
Johnson, J. J. (1999). A uniform standard for exemplary damages in employment discrimination cases. University of Richmond Law Review, 33, 41.
Kircher, J. J., & Wiseman, C. M. (2000). Punitive damages: law and practice (2nd edn., Vol. 1). St. Paul, Minn.: West Group.
Klode, M. (2009). Punitive damages—Ein aktueller Beitrag zum US-Amerikanischer Strafschedenersatz, Neue Juristische Wochenschrift 27.
Koenig, T., & Rustad, M. (1998). “Crimtorts” as corporates just deserts. University of Michigan Journal Law Reform, 31, 289.
Koziol, H. (2008). Punitive damages. A European perspective. Louisiana Law Review, 68, 741.
Lagodny, O. (1996). Strafrecht vor den Schranken der Grundrechte. Tübingen: Mohr Siebeck.
López, M. E. (2001). Comment: a normative theory of nontortfeasor liability and taxonomy for exemplary damages. University of California Law Review, 48, 1017.
López Herrera, E. (2008). Los daños punitivos. Naturaleza. Tipos. Jurisprudencia comparada. Análisis económico. Aplicación al derecho del consumidor (art. 52 bis, ley 24.240). Buenos Aires: Abeledo Perrot.
Lozano Cutanda, B. (1997). La tensión entre eficacia y garantías en la represión administrativa: aplicación de los principios constitucionales del orden penal en el derecho administrativo sancionador con especial referencia al principio de legalidad. Cuadernos de Derecho Judicial 11.
Mallor, J., & Roberts, B. (1999). Punitive damages: toward a principle aproach. Hastings Law Journal, 50, 969.
Mann, K. (1992). Punitive civil sanctions: the middleground between criminal and civil Law. Yale Law Journal, 101, 1795.
Marina Jalvo, B. (2006). El régimen disciplinario de los funcionarios públicos (3rd edn.). Valladolid: Lex Nova.
Markel, D. (2009a). Retributive damages: a theory of punitive damages as intermediate sanction. Cornell Law Review, 94, 239.
Markel, D. (2009b). How should punitive damages work. University of Pennsylvania Law Review, 157, 1383.
Martínez-Buján Pérez, C. (1998). Derecho penal económico. Parte general, Valencia: Tirant lo Blanch.
Massey Calvin, R. (1987) The Excessive Fines Clause and Punitive Damages: Some Lessons From History. Vanderbilt Law Review, 40 1233 and ff.
Maugeri, A. M. (1999a). Il regolamento n. 2988/95: un modelo di disciplina del potere punitivo comunitario I. Rivista Trimestrale di Diritto Penale della Economia 3.
Maugeri, A. M. (1999b). Il regolamento n. 2988/95: un modelo di disciplina del potere punitivo comunitario II. Rivista Trimestrale di Diritto Penale della Economia 4.
Meriwether Cordray, M. (1999). The limits of state sovereignty and the issue of multiple punitive damages awards. Oregon Law Review, 48, 275.
Mir Puig, S. (2010). Derecho penal. Parte general (8th edn.). Barcelona: Reppertor.
Mörsdorf-Schulte, J. (1999). Funktion und Dogmatik US-amerikanischer punitive damages. Zugleich ein Beitrag zur Diskussion um die Zustellung und Anerkennung in Deutchland. Berlin: Mohr Siebeck.
Mueller, P. (2000). Punitive damages und deutsches Schadensersatzrecht. Frankfurt: Peter Lang.
Murphy, R. W. (1998). Superbifurcation: making room for state prosecution in the punitive damages process. North Carolina Law Review, 76, 463.
Nieto, A. (2005). Derecho administrativo sancionador (5th edn.). Madrid: Tecnos.
Nieto Martín, A. (2008). La responsabilidad penal de las personas jurídicas: un modelo legislativo. Madrid: Iustel.
OECD (2008). Follow-up Report on the implementation of the phase 2 recommendations on the applications of the Convention and the 1997 revised recommendation on combating bribery of foreign public officials in international business transactions. http://www.oecd.org/spain/41590651.pdf. Accessed 30 October 2012.
Owen, D. G. (1994). A punitive damages overview: functions, problems and reform. Villanova Law Review, 39, 36.
Owen, D. (2010). Response: aggravating punitive damages. University of Pennsylvania Law Review Pennumbra, 158, 181.
Pace, K. A. (1997). Recalibrating the scales of justice through national punitive damage reform. The American University Law Review, 46, 1573.
Paliero, C. E. (1985). Materia penale e illecito amministrativo secondo la corte Europea dei diritti del’uomo: una questione “classica” a una svolta radicale, Rivista Italiana di Diritto e Procedura Penale, 894.
Pepe, C. (1990). Illecito e sanzione administrativa. Padova: Cedam.
Polinsky, A. M., & Shavell, S. (1998). Punitive damages: an economic analysis. Harvard Law Review, 111, 869.
Pollack, B. J. (2009). Time to stop living vicariously: a better approach to corporate criminal liability. American Criminal Law Review, 46, 1393.
Quarta, F. (2008). Recognition and enforcement of U.S. punitive damages awards in continental Europe: the Italian supreme Court’s veto. Hastings International and Comparative Law Review, 31, 753.
Reglero Campos, F. (2000). Tratado de responsabilidad civil (2nd edn.). Cizur Menor: Thomson Aranzadi.
Robles Planas, R. (2006). Delitos de personas jurídicas?, InDret 2.
Romero, L. M. (2008). Punitive damages, criminal punishment, and proportionality: the importance of legislative limits. Connecticut Law Review, 41, 109.
Rosengarten, J. (1994). Punitive damages und ihre Anerkennung und Vollstreckung in der Bundesrepublik Deutschland, Hamburg, 1994. Hamburg Univ.
Roxin, C. (2006). Strafrecht. Allgemeiner Teil. 4 Auf. Munchen: C.H. Beck.
Rubin, E. L. (1998). The incidence, scope, and purpose of punitive damages: reconceptualizing the runcible remedies of common law. Wisconsin Law Review, 1998, 131.
Rubin, P. H., Calfee, J. E., & Grady, M. F. (1997). BMW v gore: mitigating the punitive economics of punitive damages. Supreme Court Economic Review, 5, 179.
Rubio de las Casas, M. (1984). Potestad sancionadora de la Administración y garantías del administrado. Comentario a la Sentencia del Tribunal Europeo de Derechos Humanos de 21 de febrero de 1984. El caso Otztürk, Revista de la Administración Pública 104.
Rustad, M. L. (2005). Access to justice: can business co-exist with the civil justice system?: the closing of punitive damages’ iron cage. Loyola of Los Angeles Law Review, 38, 1297.
Rustad, M., & Koenig, T. (1993). Historical continuity of punitive damage awards: reforming the tort reformers. The American University Law Review, 42, 1269.
Sabatino, J. M. (1997). Privatization and punitives: should government contractors share the Sovereign’s immunities from exemplary damages? Ohio State Law Journal, 58, 175.
Salas Claver, J. (2007). Daños punitivos. La pregunta es para cuándo, Práctica derecho daños: Revista de Responsabilidad Civil y Seguros, 55.
Salvador Coderch, P., & Castiñeira Palou, M. T. (1997). Prevenir y castigar. Madrid: Marcial Pons.
Sánchez García de Paz, I. (1994). El principio constitucional de proporcionalidad en el Derecho penal, La Ley 3676.
Schlueter, L. L. (2005). Punitive damages, 5th edn., Lexis Nexis.
Schroeder, F.-Ch. (1997). Die Rechstnatur des Grundsatzes “ne bis in idem”, Juristische Schülung 1997-3.
Schünemann, B. (1996). Consideraciones críticas sobre la situación espiritual de la ciencia jurídico-penal alemana, Anuario de Derecho Penal y Ciencias Penales.
Schwartz, V. E., et al. (1999). Reining in punitive damages “Run wild”: proposals for reform by courts and legislatures. Brooklyn Law Review, 65, 1003.
Sebok, A. J. (2007). Punitive damages: from myth to theory. Iowa Law Review, 92, 957.
Seltzer, R. A. (1983). Punitive damages in mass tort litigation: addressing the problem of fairness, efficiency and control. Fordham Law Review, 52, 37.
Sharkey, L. M. (1996). Judge or jury: who should assess punitive damages. University of Cincinnati Law Review, 64, 1089.
Sharkey, C. M. (2003). Punitive damages as societal damages. Yale Law Journal, 113, 347.
Silva Sánchez, J. M. (2001). La expansión del Derecho penal. Aspectos de la política criminal en las sociedades postindustriales. Madrid: Civitas.
Silva Sánchez, J. M. (2002). La responsabilidad penal de las personas jurídicas en el Convenio del Consejo de Europa sobre cibercriminalidad, Cuadernos de Derecho Judicial 9.
Siniscalco, M. (1983). Depenalizzaione e garanzia. Bolonia: Il Mulino.
Stella, F. (2003). Giustizia e Modernità: la protezione dell’innocente e la tutela delle vittime (IIIth edn.). Milano: Giuffré.
Sunstein, C. R. (2002). Punitive damages. How juries decide. Chicago: The University of Chicago Press.
Sunstein, C. R., Kahneman, D., & Schkade, D. (1998). Assessing punitive damages (with notes on cognition and valuation in law). Yale Law Journal, 107, 2071.
Tettenborn, A. (2004). Punitive damages—a view from England. San Diego Law Review, 41, 1551.
Tiedemann, K. (1988). Die “Bebüssung” von Unternehmen nach dem 2 Gesetz zur Bekämpfung der Wirtschaftskrimimalität, Neue Juristische Wochenschrift 41.
Toy, A. J. (1991). Statutory punitive damage caps and the profit motive: an economic perspective. Emory Law Journal, 40, 303.
Trug, G. (2010). Zu den Folgen des Einführung eines Unternehmensstrafrechts, Wistra 7.
Vaquero López, C. (2011). Sobre la posibilidad de reconocimiento en España de “daños punitivos” como consecuencia de la infracción del Derecho comunitario de la competencia. In L. A. Velasco San Pedro (Ed.), La aplicación privada del Derecho de la competencia. Valladolid: Lex Nova.
Welke, W. A. (2008). Die repersonalisierung des Rechtskonflikts. Zum gegenwärtigen Verhältnis von Straf- und Zivilrecht, Frankfurt a.m. Peter Lang.
Wells, C. (1993). Corporations and criminal responsibility. Oxford: Oxford University Press.
Wheeler, M. E. (1983). The constitutional case for reforming punitive damages procedures. Virginia Law Review, 69, 269.
Wilcox, V. (2009). Punitive damages in England. In H. Koziol & V. Wilcox (Eds.), Punitive damages: common law and civil law perspectives. Wien: Springer.
Wohlers, W. (2000). Delikstypen des Präventionsstrafrechts-zur Dogmatik moderner Gefährdungsdelikte. Berlin: Duncker & Humblot.
Zipursky, B. C. (2005). A theory of punitive damages. Texas Law Review, 84, 105.
Zugaldía Espinar, J. M. (2008). La responsabilidad penal de empresas, fundaciones y asociaciones. Valencia: Tirant lo Blanch.
Acknowledgments
I wish to express my thanks to the University of Harvard, at which I completed the present work, in the summer of 2011, and to the Spanish Ministry of Innovation and Science, which financed it through research project DER2009-08324.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Gómez Tomillo, M. Punitive Damages: A European Criminal Law Approach. State Sanctions and the System of Guarantees. Eur J Crim Policy Res 19, 215–244 (2013). https://doi.org/10.1007/s10610-012-9186-y
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10610-012-9186-y