I was excited to receive in the mail yesterday a complimentary copy of the tenth edition of Black’s Law Dictionary, which is edited by Bryan Garner, an acquaintance of many years with whom I have long enjoyed discussing the craft of legal writing.
There is something about Black’s that brings me back to the early days of law school when virtually every legal term I encountered in the cases we read for class was mysterious. Back then, I was using the fifth edition, which I still keep on my shelf for handy reference. Now, I am pleased to bookend it with the tenth edition.
Like prior versions edited by Bryan, the tenth edition is low on jargon and uses more modern language to describe even hoary doctrines.
What does any of this have to do with punitive damages? Not much, except that a comparison of the definitions of punitive damages from the two editions—published 35 years apart—is illuminating.
The fifth edition was written before the punitive-damages explosion and before the leading Supreme Court advocate for constitutional limitations on punitive damages, Justice O’Connor, had even been elevated to the High Court, much less begun expounding on the topic. Unsurprisingly, therefore, it focuses on the common-law roots and purposes of punitive damages. It accords with the view expressed by Andy Frey, Lauren Goldman, and me in our chapter on punitive damages in the ABA treatise Business and Commercial Litigation in Federal Courts that until the late 1970s punitive damages served largely to supplement economic damages—“to solace the plaintiff for mental anguish, laceration of his feelings, shame, degradation or other aggravations of the original wrong,” though only in circumstances in which the defendant had acted “willfully, maliciously, or fraudulently.”
The sole source cited in the fifth edition is a 1971 decision from the California Court of Appeal. Ironically, the court in that case upheld a punitive award that was more than 190 times the compensatory damages, flatly rejecting the concept that a “disparate ratio” is an indication of excessiveness. The court instead focused principally on the wealth of the defendant insurance company. Needless to say, times have changed.
Fast forward to the tenth edition. This version drops the discussion of the compensatory purpose of punitive damages—no doubt because today most states generously provide for damages for emotional distress, so punitive damages now are truly a windfall to plaintiffs who don the mantle of private attorneys general. Instead, after briefly stating that the purposes of punitive damages are to punish and deter, the tenth edition turns immediately to the constitutional limits on punitive damages and, in particular, the three excessiveness guideposts identified in BMW v. Gore. The entry concludes with a quote from another Supreme Court case, Cooper Industries v. Leatherman Tool Group, that explains the distinct functions of compensatory and punitive damages—again, a big change from the state of the law described in the fifth edition.
If I had my druthers, the entry on punitive damages would be more comprehensive, touching on the historical debate about the propriety of punitive damages, the expansion of their availability over time, the constitutionalization of the topic, etc. But the tenth edition already tops 2000 pages, and undoubtedly devotees of other areas of law would similarly advocate for increasing the coverage of their topics of interest. So unless Bryan aspires to turn the dictionary into a legal encyclopedia, readers with an interest in punitive damages will need to continue to consult this blog, the California Punitive Damages Blog, and other sources focused on the topic to get their fill.