Should Courts Deduct Non-Legal Sanctions from Damages?

Robert D. Cooter, Boalt Hall, UC Berkeley
Ariel Porat, Tel Aviv University Faculty of Law

Abstract

When legal and social norms regulate the same behavior, an act can trigger both legal and non-legal sanctions. Should courts deduct the non-legal sanction suffered by the wrongdoer from damages owed to the victim? We provide the answer for a legal system that seeks to minimize social costs. Non-legal sanctions typically harm the wrongdoer and benefit other people. In principle, courts should avoid over-deterring wrongdoers by deducting the benefit of the non-legal sanction from compensatory damages. In practice, instead of deducting the benefit of the non-legal sanction to other people, courts should deduct the burden on the wrongdoer. Deducting the burden of the non-legal sanction from compensatory damages typically improves the incentives of wrongdoers and victims. We make practical suggestions for courts to implement our proposal that would significantly reduce damages in torts and contracts.