Superbifurcation: Making Room for State Prosecution in the Punitive Damages Process

Punitive damages awards in tort cases have been a part of Anglo-American law since the eighteenth century. Debate over their propriety has raged ever since - particularly over the last two decades or so. Neither side in this debate is likely ever to convince the other. But we need not wait for them to do so before finding ways to improve the fairness of the punitive damages device. This article suggests that states adopt a reform one might call, for want of a better term, superbifurcation. This scheme would leave private plaintiffs in charge of proving punitive liability but would reward them for doing so with reasonable attorney's fees rather than a chance to win punitive damages. After a finding of punitive liability, a state prosecutor could bring a single action against the defendant for punitive damages based on its tortious course of conduct within the forum state, which would pocket any punitive damages awarded. The proposed reform would improve the current punitive damages regime by: (1) lessening the influence of plaintiff financial self-interest on the punishment process; (2) adding another layer of control to a punishment process that is alarmingly unconstrained in its present form; and (3) reducing the danger of repetitive punishment in the context of mass torts.