1 Acheson, J., “Territories of the Lobsterman” (1972) 81 Natural History Magazine 60Google Scholar.

2 Buckle, L. and Thomas-Buckle, S., “Doing Unto Others: Dispute Processing in an Urban American Neighborhood”, in Tomasic, R. and Feeley, M., Neighborhood Justice: Assessment of an Emerging Idea (New York, Longman, 1982) 84Google Scholar.

3 Merry, S., “Going to Court: Strategies of Dispute Management in an American Urban Neighborhood” (1979) 13 Law & Society R. 891, at 912CrossRefGoogle Scholar.

4 Buckle and Thomas-Buckle, supra n. 2, at 78, 86; Merry, supra n. 3; Black, D. and Baumgartner, M., “On Self-Help in Modern Society”, in Black, D., ed., The Manners and Customs of Police (New York, Academic Press, 1978)Google Scholar.

5 Black, D., “Crime as Social Control” (1983) 48 Am. Sociological R. 34CrossRefGoogle Scholar.

6 For example, in the proceeding that led to the suspension of University of Nevada at Las Vegas basketball coach Jerry Tarkanian involving charges that he violated NCAA bylaws, the Committee on Infractions relied on “numerous exhibits and sworn affidavits”, made “factual determinations concerning alleged rule violations”, and imposed “appropriate penalties”. “The Committee also requested UNLV to show cause why additional penalties should not be imposed against UNLV if it failed to discipline Tarkanian by removing him completely from the University's intercollegiate athletic program during the probation period. UNLV appealed most of the Committee's finding and proposed sanctions to the NCAA Council. After hearing argument from attorneys representing UNLV and Tarkanian, the Council … approved the Committee's investigation and hearing process and adopted all its recommendations”. National Collegiate Athletic Association v. Tarkanian, 109 S. Ct. 454, 458-59 (1988).

7 “Final Decision Due in Swaggart Case”, New York Times, Mar. 4, 1988, p. 9Google Scholar; “Church Defrocks Swaggart For Rejecting Its Punishment”, New York Times, Apr. 9, 1988, p. 1Google Scholar. This is a recent instance of a long and complex tradition of church courts. For some earlier American examples, see Shriver, G., ed., America's Religious Heretics: Formal and Informal Trials in American Protestantism (1966)Google Scholar.

8 Cole calls this the “second criminal justice system”. Cole, R., “The Second Criminal Justice System” (1978) 43 Society of Advanced Management Journal 17Google Scholar.

9 Macaulay, S., “Private Government” in Lipson, L. and Wheeler, S., eds., Law and the Social Sciences (New York, Russell Sage Foundation, 1987)Google Scholar.

10 Indigenous systems of regulation and punishment exist within legal institutions as they do in other social institutions. See Blau, P., The Dynamics of Bureaucracy: A Study of Interpersonal Relations in Two Governmental Agencies (1963)Google Scholar.

11 These are reviewed in Galanter, M., “Justice in Many Rooms: Courts, Private Ordering and Indigenous Law” (1981) 19 J. of Legal Pluralism 1CrossRefGoogle Scholar; See also Macaulay, supra n. 9.

12 Thus in the Tarkanian case, supra n. 6, the Supreme Court endorsed the power of private associations to regulate behaviour free of the constraints of due process. An intricate variation on this is the recent Texas statute making it a civil offence to violate the rules of the National Collegiate Athletic Association. Boosters who violate NCAA rules about paying athletes could be sued by “schools and athletic conferences … for damages in the amount of the revenue from ticket sales and television rights that was lost because of sanctions imposed by the NCAA”. Frank, P., “Texas Enacts Law to Curb Cheating”, National L. J., June 22, 1987, p. 38Google Scholar.

13 Carper, D., “Punitive Damages in Commercial Arbitration” (1986) 41 Arbitration J. 27Google Scholar; T. Stipanowich, “Punitive Damages in Arbitration: Garrity v. Lyle Stuart, Inc. Reconsidered” (1986) 66 Boston U. L. R. 953.

14 Thus, in Bonar v. Dean Witter Reynolds, 835 F. 2d 1398 (11th Cir. 1988) and in Raytheon Co. v. Automated Business Sys., Inc., 882 F. 2d 6 (1st Cir. 1989), authority for punitive awards was found in contractual provisions providing for arbitration to be conducted according to the rules of the American Arbitration Association, which in turn provided that arbitrators may “grant any remedy or relief which is just and equitable and within the terms of the agreement of the parties”. (AAA Rule 42, quoted in Raytheon, at 9-10). Similarly, an arbitrator's award of treble damages in arbitrating a RICO case has been upheld. Kerr-McGee Ref. Corp. v. Triumph Tankers, Ltd., 942 F. 2d 467 (2d Cir. 1991). On the state courts, see, e.g., Baker v. Sadick, 162 Cal. App. 3d 618, 208 Cal. Rptr. 676 (1984), and generally T. Stipanowich, supra n. 13, at 964-67.

15 Restatement (Second) of Contracts § 356(1); Uniform Commercial Code § 2-718(1). Cf. Lake River Corp. v. Carborundum Co., 769 F. 2d 1284, 1288 (7th Cir. 1985) (holding that a liquidated damages clause was void as a penalty where it would give the plaintiff several times the profit it would have gained if there was no breach, noting the “deep … hostility to penalty clauses … in the common law”).

16 Sued for breach of contract in a dispute arising from his salad dressing business, Paul Newman complained, “[w]hen you have to plead innocence and you're not guilty, that's degrading”. Ravo, N., “Who is Hustling Now? A Paul Newman Drama”, New York Times, June 16, 1988, p. 13Google Scholar. Cf. the statement by a juror in a malpractice case who told an interviewer: “I voted no negligence because there was no criminal act…” Danzig, R., The Capabilities Problem in Contract Law: Further Readings on Well-Known Cases (1978) 22Google Scholar.

17 A corporate CEO writing about a products liability suit, reports that “a not guilty verdict was rendered by the jury”. Figgie, H., “Football Faces a 100-Yard Loss”, N. Y. Times, Oct. 9, 1988, p. 23Google Scholar.

18 Macaulay, S., “Non-Contractual Relations in Business: A Preliminary Study” (1963) 28 Am. Sociological R. 55CrossRefGoogle Scholar. Cf. the Bob Newhart Show, (CBS, Dec. 10, 1984) in which the hero, sued for plagiarism, is found “not guilty” after a proceeding replete with “criminal” imagery.

19 Cf. Lakoff, G. and Johnson, M., Metaphors We Live By (U. of Chicago P., 1980)Google Scholar.

20 Unlike the criminal process, this harm to the wrongdoer is not in proportion to the badness of his act, but to the loss of the victim. Actually there are echoes of this in the criminal law as well, where attempts are punished less severely than direct hits.

21 15 U.S.C. § 15 (1982).

22 18 U.S.C. § 1961-68 (1982).

23 Willging, T., The Rule 11 Sanctioning Process (1988) 5Google Scholar. For accounts of the incidence of these sanctions, see Id. and S. Burbank, Rule 11 in Transition: The Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11 (1989). This instance of indigenous “criminal law” resembles those in other workplace settings, but it is distinctive because it is administered by judges and is entwined with maneuvering about other civil punishments.

24 In a survey of libel plaintiffs, 29.4% gave punishment as the reason for bringing suit. Bezanson, R., Cranberg, G., and Soloski, J., Libel Law and the Press (1987) 79Google Scholar.

25 Kornbluth, J., “The Woman Who Beat the Klan”, N. Y. Times Magazine, Nov. 1, 1987, p. 26, at 30Google Scholar.

26 Id., at 34.

27 Engel, D., “Legal Pluralism in an American Community: Perspectives on a Civil Trial Court” (1980) American Bar Found. 425, at 452Google Scholar.

28 Taylor, G., “Does a $35M Verdict Prove a Point?”, National L. J., Dec. 29, 1986-Jan. 5, 1987, p. 3Google Scholar.

29 Marcus, & Geyelin, , “Lawyers Told to Pay $10 Million Damages”, Wall St. J., Mar. 20, 1991Google Scholar (California judge awards $10 million punitive damages and $1.185 million compensatory damages against two plaintiffs' lawyers for fraud in toxic waste litigation).

30 Devlin v. Kearney Mesa AMC/Jeep/Renault, 155 Cal. App. 3d 381, 390, 202 Cal. Rptr. 204, 209 (1984).

31 Bruck, C., “How Ford Stalled the Pinto Litigation” (1979) American Lawyer 23, at 26Google Scholar.

32 This remittitur was upheld on appeal. Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981).

33 Peterson, M., Sarma, S., and Shanley, M., Punitive Damages: Empirical Findings (Santa Monica Institute for Civil Justice, 1987) 28Google Scholar.

34 Daniels, S. & Martin, J., “Empirical Patterns in Punitive Damage Cases: A Description of Incidence Rates and Awards” (1987) (American Bar Found. Working Paper)Google Scholar [hereinafter: “Empirical Patterns”]. Daniels and Martin report on an expanded data base of 25,627 jury trials in 47 counties in 11 states in Daniels, and Martin, , “Myth and Reality in Punitive Damages” (1990) 75 Minn. L. R. 1Google Scholar [hereinafter: “Myth and Reality”]. They reported that in the enlarged data base, 4.9% of money damages jury trials led to award of punitive damages, some 8.8% of all cases in which plaintiffs were successful.

35 Peterson, Sarma, and Shanley, supra n. 33, at 35.

36 “Texas Liability Insurance Closed Claim Survey”, Feb. 1987, at 32.

37 Landes, W. and Posner, R., “New Light on Punitive Damages”, (Oct. 1986) Regulation 33, at 36Google Scholar.

38 Soular, L., A Study of Large Product Liability Claims Closed in 1985 (1986)Google Scholar. But cf. a recent General Accounting Office study of 305 product liability verdicts in five states in cases closed in 1983-85, which found punitive damage awards in 7.5% (23) of the total and 16.9% of the 136 cases won by plaintiffs. General Accounting Office, Product Liability: Verdicts and Case Resolution in Five States (1989) 24, at 29Google Scholar.

39 This category includes “contract cases, actions based on a violation of a presumed obligation to act in good faith (e.g., business interference, insurance bad faith, tortious interference with contract), and breach of duty or professional malpractice not involving personal injury (e.g., breach of fiduciary duty, legal malpractice, financial malpractice)”. Daniels and Martin, “Empirical Patterns”, supra n. 34.

40 Daniels and Martin calculated the median punitive award in seventeen sites where there were more than ten punitive awards. Medians ranged from $5,570 in Johnson County, Kansas to $108,000 in Sacramento County, California. Six counties has medians over $30,000; five has medians below $20,000. Id., at 11. There is no breakdown of award levels by case types.

41 The oft-cited figures of 85 percent or 90 percent or 95 percent settlements are misleading: they represent the portion of civil cases that do not go to trial. But a significantly larger number of cases may be disposed of by authoritative decisions in ways other than trial. Kritzer, analyzing some 1,649 cases in federal and state courts in five localities, found that although only 7 percent terminated through trial, another 24 percent terminated through some other form of adjudication (arbitration, dismissal on the merits) or a ruling on a significant motion that led to settlement. Kritzer, H., “The Lawyer as Negotiator: Working in the Shadows” (1986) (Univ. of Wisconsin Law School, Institute for Legal Studies, Working Paper) 12Google Scholar.

42 Stern, G., The Buffalo Creek Disaster (1976) 68, 87Google Scholar, passim.

43 Harris, R., “Insurers Now Settle Faster, More Cheaply After Big Air Crashes”, Wall St. J., July 11, 1980, p. 1Google Scholar; Wolfson, A., “Air Crash Lead Counsel Named”, National L. J., July 7, 1986, p. 3, at 30Google Scholar.

44 A similar increase of punitive damages in commercial arbitration awards may be taking place. They have certainly achieved a new legitimacy. See Carper, supra n. 13, at 27; Willoughby Roofing and Supply Co. v. Kajima International, 598 F. Supp. 353, 363 (N. D. Ala 1984). For more, see supra n. 13 and n. 14.

45 Peterson, Sarma, and Shanley, supra n. 33.

46 Id., at 11.

47 Id., at 23.

48 “Constitution vs. Tort Crisis”, Wall St. J., Dec. 9, 1987, p. 34Google Scholar.

49 Wermiel, S., “Supreme Court Shows Interest in Debate on Limiting Damage Awards in Civil Suits”, Wall St. J., Jan. 5, 1988, p. 25Google Scholar. The Supreme Court declined to reach these questions in Bankers Life and Casualty Company v. Crenshaw, 108 S. Ct. 1645 (1988). See also Browning-Ferris Indus, v. Kelco, infra n. 51.

50 George Frazza, general counsel of Johnson and Johnson, quoted in Wermiel, supra n. 49.

51 In Browning-Ferris Indus, v. Kelco, 109 S. Ct. 2909 (1989), the U. S. Supreme Court upheld punitive damages of $6 million awarded by a jury to a local garbage collector in a predatory pricing case. The Court ruled that punitive damages did not violate the 8th Amendment prohibition against excessive fines and cruel and unusual punishment, since the excessive fines clause “does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action or has any right to receive a share of the damages awarded”, (at 2914).

In 1991, in Pacific Mut. Life Ins. Co. v. Haslip, 111 S. Ct. 1032 (1991), the Court held that the punitive damages portion of a $1.04 million award to one person and about $40,000 to three others did not violate the due process clause of the 14th Amendment because they were disproportionate to the compensatory damages. The punitive damages were awarded by a jury against a health insurance company for failing to monitor one of its agents, who had pocketed the plaintiffs' premiums instead of establishing their insurance policy. The Court also rejected the contention that a vague instruction by the trial court to the jury about the purpose of punitive damages was insufficient to protect against jury discretion violating due process (at 1044).

52 Although some lawyers insist that constitutional challenges to punitive damages may prevail in the future, other defence attorneys are concentrating their efforts on proposals for state-level legislative restrictions. These include proposals for requiring higher standards of proof, stricter language in jury instructions, and imposing limits through state constitutions. Shartel, J. Stratton, “Punitive Damages Strategies in the Wake of Haslip”, (Apr. 1991) 5 Inside Litigation 1, at 24Google Scholar.

53 Gallup Organization, Attitudes Toward the Liability and Litigation System: A Survey of the General Public and Business Executives (Princeton, 1982)Google Scholar. This study was commissioned by the Insurance Information Institute.

54 This question contains a number of biases. First, its characterization of the offending conduct as “improper” is quite mild; it does not convey any sense that the conduct in question is intentional, reckless, or otherwise reprehensible. That is, the term lacks any emotive force comparable to an account of the conduct in question. Second, the question specifies the purpose as deterrence, excluding any retributive aspect. Third, it assumes that the plaintiff is already compensated so fully that there is no irreparable loss.

55 Gallup Organization, supra n. 53, at 54-55, 162-63. It is not clear just how this pattern is to be explained. Perhaps these more educated groups have a clearer grasp of the deterrence function of civil damages that is highlighted by the question.

56 There is some overlap with white collar crime. Both punitive damages and white collar crime produce a curious reversal of views on punishment; the left is for draconian harshness; the right for leniency, education, and due process.

57 In a recent decision involving punitive damages for insurance claim misrepresentation, a New York court noted, “Criminal law is not a particularly effective deterrent against fraudulent business practices (and that, for the professional schemer, compensatory damages are nothing but a business expense)…” The court said this “reflected the long-held general view that punitive damages are not to be denied merely because the wrongdoing upon which the action is based may be or has been prosecuted in a criminal proceeding”. Belco Petroleum Corp. v. ALG Oil Rig Inc., 164 A. D. 2d 583, 565 N.Y.S. 2d 776, 781.

58 “Bill Would Ease Punitive Damages”, Wisconsin State J., Nov. 29, 1987, sec. 1, p. 12Google Scholar. These findings invite inspection to see if the amount of traffic through vulnerable areas was undiminished. But their recital shows what is believed by at least some of the actors.

59 Bates, M., “TSS Award Slashed after Playtex Stops Selling Tampon”, National L. J., June 10, 1985, p. 10Google Scholar.

60 O'Gilvie v. International Playtex Inc., 821 F. 2d. 1438 (10th Cir. 1987), cert, denied, 486 U.S. 1032 (1988). Discussed in Bates, supra n. 59.

61 Compare Abel's observation on the shift from special to general deterrence in independent Africa with the professionalization and centralization of law, the consolidation of fewer courts with wider jurisdiction, prosecution of a smaller proportion of wrongs, and imposition of harsher punishments. Abel, R., “Western Courts in Non-Western Settings: Patterns of Court Use in Colonial and Neo-Colonial Africa” in Burman, S. and Harrell-Bond, B., eds., The Imposition of Law (New York, Academic Press, 1979) 193Google Scholar.

62 V. Aubert, “On Methods of Legal Influence” in S. Burman and B. Harrell-Bond, eds., ibid., at 30.

63 Compare the observation of Freiberg, A. and O'Malley, P., “State Intervention and the Civil Offense” (1984) 18 Law & Society R. 373CrossRefGoogle Scholar, of the increasing prominence of hybrid forms of civil punishment in which the state creates opportunities for private actors to inflict financial penalties on those who contravene legal standards.

64 Durkheim, E., The Division of Labor in Society (1933)Google Scholar.