“Crimtorts” as Corporate Just Deserts

Just as Grant Gilmore described “contorts” that lie on the borderline between contract and tort law, the authors coin the term “crimtort” to identify the expanding common ground between criminal and tort law. Although the concept of crimtort can be broadly applied to many areas of the law, this Article focuses on the primary crimtort remedy – punitive damages. The deterrent power of punitive damages lies in the wealth-calibration of the defendant’s punishment. For corporations this means that punitive damages will reflect the firm’s net income or net worth. The theoretical danger is that juries will abuse wealth by redistributing corporate assets in disregard of the purposes of civil punishment. To support their argument that wealth is not being widely misused, the authors present an empirical study of a decade of crimtort cases in which federal appeals courts upheld punitive damages of $1 million or more. However, even though punitive damage verdicts are generally proportional to corporate wealth, individual cases such as Exxon Valdez raise troubling due process issues. The authors propose instituting middle-range procedural protection for crimtort defendants in order to accommodate the quasi-criminal objectives of this legal hybrid.