The Summer 2008 edition of the Hastings International and Comparative Law Review contains an article entitled “Recognition and Enforcement of U.S. Punitive Damages Awards in Continental Europe: the Italian Supreme Court’s Veto.” (31 Hastings Int’l & Comp. L. Rev. 753.) The article is written by Francesco Quarta, an L.L.M. candidate at Hastings and a research scholar on the law faculty of Università del Salento, in Lecce, Italy.

The article focuses primarily on the Italian court system’s refusal to enforce a $1 million judgment entered against an Italian bicycle manufacturer in a wrongful death action in federal district court in Alabama. Alabama law is rather unusual in that punitive damages are the only form of damages recoverable in wrongful death actions. In this case, the plaintiffs’ sought to enforce the judgment in Italy, but an intermediate appellate court in Venice ruled that the judgment was unenforeceable because punitive damages are not recognized under Italian law. The Italian Supreme Court affirmed.

The article maintains that, in general, refusal to enforce U.S. punitive damages awards is consistent with Italian law. The article suggests, however, in cases where an award is nominally designated as punitive but contains some compensatory element (as is apparently the case with Alabama wrongful death awards), Italian courts should make some effort to separate the compensatory and punitive components of the awards, instead of rejecting such awards in their entirety. The article also suggests that Italian courts should refuse to enforce some U.S. compensatory damages awards, such as emotional distress awards, to the extent they contain a punitive component.

For whatever reason, European views on American punitive damages awards seems to be a hot topic now.

The Spring 2008 edition of the Louisiana Law Review contains an article by Helmut Koziol, a retired law professor of the University of Vienna, director of the Research Unit for European Tort Law under the Austrian Academy of Sciences, and Managing Director of the European Centre of Tort and Insurance Law. The article, entitled “Punitive Damages: A European Perspective,” is an extend version of a lecture at Louisiana State University. No link is available but the citation is 68 La. L. Rev. 741.
Professor Koziol’s article explores some of the reasons why the American system of punitive damages “cause[s] continental Europeans to shake their heads.” (We previously linked to an Adam Liptak article in the New York Times regarding foreign attitudes towards American punitive damages awards.) First, Professor Koziol says that punitive damages are often awarded to redress public outrage at conduct that damages society, but they are awarded to an individual who has neither suffered damage to that amount, nor has a claim for unjust enrichment against the defendant. “Even if there are very strong arguments for imposing a sanction on the defendant, these arguments alone cannot justify awarding the plaintiff an advantage when he has suffered no corresponding damage and has no unjust enrichment claim against the defendant.”

Koziol also states that deterrence, one of the two goals of punitive damages (the other being punishment) can be reached only imperfectly through punitive damages. To acheive optimal deterrence, defendants would have to be subject to punishment for attempted misconduct, and not only to the occurrence of damage. But that would be contrary to other settled principles of private tort law. Koziol also points out that imposing punishment through tort law is contrary to the separation of criminal law and private law, “which is thought to be an achievement of modern legal culture.”

Koziol concludes with the assertion that the American legal system should strive to acheive punishment and deterrence not through private tort law but through the development of criminal and administrative procedures. Under this approach, all fundamental principles of criminal law would be observed, including the principle that the punishment should be laid down in the law. In response to the criticism that prosecutors and criminal courts would be overwhelmed, he says, “I am no expert in this field, but I think that this problem could be reduced by a system of private prosecution. Granted, the suggested approach may lead to criminal courts being overburdened by a flood of cases, but the adjudication of criminal cases is the job of criminal courts, and a failure to do this would result in the civil courts being overloaded and civil rules being manipulated to accommodate the aims of criminal law.”