Professor Bogus comes to praise tort law, while Professor Priest aims to bury it. I will argue that tort law has been poorly served - and poorly serves us- by academic attempts to describe and defend it as public regulatory law Let me illustrate my point by discussing a famous tort suit that raised issues ultimately decided by the u.s. Supreme Court in 2003 --tate Farm t: Campbell. State Farm issued auto insurance to the Campbells. After Mr. Campbells careless driving caused a car accident, he was sued in negligence by the person he injured. State Farm took over the defense of the suit and did a very bad job of it. In particular,it declined an offer to settle the case at the rather modest limits of the Campbells policy. State Farms"bad faith breach'of the duty to defend resulted in a judgment against the Campbells that exceeded their coverage by $135,000, and put them in danger of losing their home. A Utah jury hearing the Campbells' claim against State Farm awarded them $2.5 million in compensatory damages(mostly for emotional distress). In addition based on evidence of questionable practices employed by State Farm in handling State Farm Mut. Auto Ins Co. v. Campbell, 538 U.S. 408(2003). My thinking on the subject of punitive damages has been heavily influenced by the work of Ben Zipursky and Tony Sebok. See Anthony J Sebok, Introduction: w hat Does it Mean to Say that A Remedy Punishes, 78 Chi. Kent L. Rev. 3(2003); Anthony J. Sebok, W hat Did Punitive Damages Do?: W ly Misunderstanding the History of punitive Damages Matters Today, 78 Chi. Kent L. Rev. 16.3(2003); Benjamin C. Zipursky, BMW r: Gore: A New Chestnut(unpublished manuscript on file with the author). See also Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Indiidual Prinate W rongs, 87 Minn. L. Rev. 583(2003). Martin Redish and Andrew Mathews have recently argued that, given modern instrumental justifications of punitive damages, their award necessarily amounts to an impermissible delegation of public regulatory authority to private actors. See Martin H. Redish Andrew L. Mathews, W by Punitive Damages are Unconstitutional 53 Emory L J. 1(2004 ). I would say instead that a given punitive damage award may be unconstitutional if it is the case that the onb justification for the award magnitude is that it serves public goals such as deterrence, as opposed to providing redress to the victim of a particularly egregious form of mistreatment committed by the tortfeasor upon the victim.5 Professor Bogus comes to praise tort law, while Professor Priest aims to bury it. I will argue that tort law has been poorly served -- and poorly serves us – by academic attempts to describe and defend it as public regulatory law. I Let me illustrate my point by discussing a famous tort suit that raised issues ultimately decided by the U.S. Supreme Court in 2003 -- State Farm v. Campbell. 2 State Farm issued auto insurance to the Campbells. After Mr. Campbell’s careless driving caused a car accident, he was sued in negligence by the person he injured. State Farm took over the defense of the suit and did a very bad job of it. In particular, it declined an offer to settle the case at the rather modest limits of the Campbells’ policy. State Farm’s “bad faith breach” of the duty to defend resulted in a judgment against the Campbells that exceeded their coverage by $135,000, and put them in danger of losing their home. A Utah jury hearing the Campbells’ claim against State Farm awarded them $2.5 million in compensatory damages (mostly for emotional distress). In addition, based on evidence of questionable practices employed by State Farm in handling 2 State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003). My thinking on the subject of punitive damages has been heavily influenced by the work of Ben Zipursky and Tony Sebok. See Anthony J. Sebok, Introduction: What Does it Mean to Say that A Remedy Punishes, 78 Chi.-Kent L. Rev. 3 (2003); Anthony J. Sebok, What Did Punitive Damages Do?: Why Misunderstanding the History of Punitive Damages Matters Today, 78 Chi.-Kent L. Rev. 163 (2003); Benjamin C. Zipursky, BMW v. Gore: A New Chestnut (unpublished manuscript on file with the author). See also Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Individual, Private Wrongs, 87 Minn. L. Rev. 583 (2003). Martin Redish and Andrew Mathews have recently argued that, given modern instrumental justifications of punitive damages, their award necessarily amounts to an impermissible delegation of public regulatory authority to private actors. See Martin H. Redish & Andrew L. Mathews, Why Punitive Damages are Unconstitutional, 53 Emory L.J. 1 (2004). I would say instead that a given punitive damage award may be unconstitutional if it is the case that the only justification for the award or its magnitude is that it serves public goals such as deterrence, as opposed to providing redress to the victim of a particularly egregious form of mistreatment committed by the tortfeasor upon the victim