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This is why I said the legal situation notwithstanding. I know this is how it works but I think it's nonsensical. The existence of punitive damages already thro

by Spivak 3y ago

This is why I said the legal situation notwithstanding. I know this is how it works but I think it's nonsensical. The existence of punitive damages already throws out the idea that civil suits are just about real measured harm and includes the state overlaying elements of criminality on top of civil suits to punish wrongdoing. To me the only consistent stances are either not having punitive damages at all and accounting for intangibles directly in the real damages or having punitive damages that are totally orthogonal to the real harm. And just like criminal cases we can account for attempted X being less severe than X.

crazygringo 3y ago
> The existence of punitive damages already throws out the idea that civil suits are just about real measured harm and includes the state overlaying elements of criminality on top of civil suits to punish wrongdoing. No, it has nothing to do with elements of criminality. It's the simple fact that if civil actions resulted in only restitution and nothing more, then everybody would be committing torts whenever they could, because sometimes you'll get away with it and sometimes you won't, but statistically you'll always come out ahead. Because sometimes people don't bring charges, sometimes they're too hard to prove, etc. So the additional punishment is a way to correct that, to ensure that civil suits still function as deterrence. To ensure that if we only count the suits successfully brought and prosecuted, the tort-committer will still lose overall in the end. There's nothing to do with criminality here, which is prosecuted by the state rather than by a private party.
- Spivak 3y ago
  Our only disagreement seems to be semantics. > So the additional punishment is a way to correct that, to ensure that civil suits still function as deterrence That's exactly what I mean by elements of criminality. You're not just saying that you harmed someone and have to make them whole but also that you did something wrong and have to be punished so you won't do it again. It's a fine by another name.

by Spivak 3y ago

crazygringo 3y ago

> The existence of punitive damages already throws out the idea that civil suits are just about real measured harm and includes the state overlaying elements of criminality on top of civil suits to punish wrongdoing. No, it has nothing to do with elements of criminality. It's the simple fact that if civil actions resulted in only restitution and nothing more, then everybody would be committing torts whenever they could, because sometimes you'll get away with it and sometimes you won't, but statistically you'll always come out ahead. Because sometimes people don't bring charges, sometimes they're too hard to prove, etc. So the additional punishment is a way to correct that, to ensure that civil suits still function as deterrence. To ensure that if we only count the suits successfully brought and prosecuted, the tort-committer will still lose overall in the end. There's nothing to do with criminality here, which is prosecuted by the state rather than by a private party.

Spivak 3y ago
Our only disagreement seems to be semantics. > So the additional punishment is a way to correct that, to ensure that civil suits still function as deterrence That's exactly what I mean by elements of criminality. You're not just saying that you harmed someone and have to make them whole but also that you did something wrong and have to be punished so you won't do it again. It's a fine by another name.