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The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this "multiple punishment" problem with complex and far-reaching proposals designed to protect against it. This Article argues that these observers have been asking the wrong question. The proper question is not whether awarding these "total harm" punitive damages to more than one victim can sometimes lead to unconstitutional results, but rather whether awarding these damages to even a single victim is itself unconstitutional. This Article argues that it is.

These "total harm" punitive damages awards are a product of the modern conception of punitive damages, which imagines them as punishment for public, societal wrongs. This Article challenges the historical accuracy of this modern theoretical account, and reveals that historically, punitive damages were considered to be punishment only for the distinct, private legal wrong done to the individual victim. When the same conduct harmed more than one victim, the courts limited each plaintiff's recovery of punitive damages to the amount necessary to punish the defendant only for the private wrong done to the individual plaintiff. This Article argues that both historically and presently, the constitutionality of punitive damages is dependant upon their existence as punishment for individual, private wrongs, rather than public, societal wrongs. Thus, the revolutionary proposals offered by commentators seeking to solve the multiple punishment problem go both too far (by declaring that the Constitution requires radical alterations to traditional punitive damages practice) and not far enough (by assuming that the constitutional infirmity of "total harm" punitive damages lies only in multiple awards of them). This Article argues that the constitutional concerns are best addressed by returning to the roots of punitive damages doctrine and re-implementing the historical conception of punitive damages as punishment for the private wrong done to the individual plaintiff.

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GWU Law School Public Law Research Paper No. 244; GWU Legal Studies Research Paper No. 244

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