Punitive Damages and the Public/Private Distinction: A Comparison Between the United States and Italy

Abstract

In 2007, the Italian Supreme Court stated in a landmark judicial decision regarding the enforcement of a U.S. punitive damages award that Italian tort law is meant to serve a compensatory function and that there is no room for any goal other than corrective justice within domestic tort law. The majority of Italian jurists, while criticizing this monofunctional reading of tort law, have excluded the adoption of punitive damages as a domestic remedy on the grounds that they would blur the line between tort law and criminal law and that the conditions existing in the U.S. make punitive damages non-replicable in different settings.

In this paper, I criticize the Italian rejection of punitive damages by offering a comparative analysis of the treatment punitive damages receive in the U.S. and the Italian legal discourse, with a special focus on the relationship between this tort law remedy and the public/private distinction. The significance of this analysis transcends Italy and the U.S.: controversial judicial decisions and intense academic discussions concerning punitive damages are detectable both in the U.S. and across Europe. Everywhere, punitive damages raise issues concerning essential aspects of legal systems, such as tort law’s function(s), the difference between tort law and criminal law, and the relationship between public law and private law.

The comparative analysis I propose in this paper unfolds as follows. In Part II, I explore U.S. punitive damages law and the explanatory theories U.S. scholars propose in order to accommodate this controversial tort law remedy within domestic law. This inquiry shows that the battle over the ‘true’ justification of punitive damages is part of a larger clash relating to the public/private distinction because punitive damages have the effect of locating punishment and deterrence within private law, where, according to traditional thought, they should not be.

Part of U.S. law conveys the message that courts and juries award punitive damages to further the public’s interest in punishing and deterring wrongdoers. On this account, punitive damages are a public sanction that contributes to minimizing the distinction between public and private law. Other legal materials offer a different picture by suggesting that punitive damages are awarded to promote the interest of private parties in punishing tortfeasors for their egregious wrongs. On this account, punitive damages are reconcilable with a vision of the law that keeps private law distinct from public law.

These prima facie contradictory indications in the extant law are mirrored in the divergent conclusions that scholars have reached as to the theoretical foundations of punitive damages. Some jurists see punitive damages as instrumental to the fulfillment of public goals and put forward explanatory theories that tend to blur the line between public and private law. Others, focusing on different parts of extant law, justify punitive damages in a way that serves their commitment to preserving the public/private distinction. Basically, they argue that punitive damages are about private, as opposed to public, punishment. If so understood, punishment is consistent with the basic tenets of private law.

Although both strands of legal scholarship recognize that U.S. punitive damages law exhibits a mélange of public and private law features, their conceptualizing efforts consider punitive damages as essentially public or essentially private. These legal thinkers fail to satisfactorily accommodate punitive damages within domestic law because they do not perceive that public and private elements coexist throughout tort law (and private law more generally). By resorting to the ‘nesting’ method, I show that the fact that punitive damages law is characterized by an internal coexistence of public and private as opposite and yet inextricably linked poles should not be read as an isolated and perhaps unfortunate instance in which public and private are under the same shelter.

I use the findings of Part II to illuminate and critically assess the Italian rejection of punitive damages. In Part III, I argue that in Italy too tort law is a mixture of public and private elements. Against this background, I criticize the position of the Supreme Court and of scholars towards punitive damages. This inquiry demonstrates that the Court relies on the ideal of corrective justice up to the point of transforming it into a dogma that legal reasoning must obey with virtually no exception. This approach unveils adherence to an unhelpfully rigid distinction between public and private that can only generate detrimental effects, such as impeding desirable legal reforms. It further appears that Italian jurists, although disenchanted as to the absoluteness of the public/private dichotomy, still see the notion of punishment as a wall between public and private law, even though extant law shows that punitive and deterrent elements feature in Italian tort law. In brief, Italian legal actors fail to realize that, if punitive damages were adopted in Italy, they would only represent an additional element to the already conspicuous list of public elements within tort law.

In Part IV, without any pretense of being exhaustive, I analyze three situations where the Italian system is remedially deficient and argue that punitive damages could be very useful in solving these long-standing problems: when the wrongdoer’s gain exceeds the loss suffered by the victim; when the wrongful action harms personality rights that are now protected by the criminal law; when a harm is caused to a number of people but it is likely that few, if any, of them will bring an action seeking damages.