Exxon Shipping Co. v. Baker

delivered the opinion of the Court.

There are three questions of maritime law before us: whether a shipowner may be liable for punitive damages *476without acquiescence in the actions causing harm, whether punitive damages have been barred implicitly by federal statutory law making no provision for them, and whether the award of $2.5 billion in this case is greater than maritime law should allow in the circumstances. We are equally divided on the owner’s derivative liability, and hold that the federal statutory law does not bar a punitive award on top of damages for economic loss, but that the award here should be limited to an amount equal to compensatory damages.

I

On March 24, 1989, the supertanker Exxon Valdez grounded on Bligh Reef off the Alaskan coast, fracturing its hull and spilling millions of gallons of crude oil into Prince William Sound. The owner, petitioner Exxon Shipping Co. (now SeaRiver Maritime, Inc.), and its owner, petitioner Exxon Mobil Corp. (collectively, Exxon), have settled state and federal claims for environmental damage, with payments exceeding $1 billion, and this action by respondent Baker and others, including commercial fishermen and native Alaskans, was brought for economic losses to individuals dependent on Prince William Sound for their livelihoods.

A

The tanker was over 900 feet long and was used by Exxon to carry crude oil from the end of the Trans-Alaska Pipeline in Valdez, Alaska, to the lower 48 States. On the night of the spill it was carrying 53 million gallons of crude oil, or over a million barrels. Its captain was one Joseph Hazel-wood, who had completed a 28-day alcohol treatment program while employed by Exxon, as his superiors knew, but dropped out of a prescribed followup program and stopped going to Alcoholics Anonymous meetings. According to the District Court, “[t]here was evidence presented to the jury that after Hazelwood was released from [residential treatment], he drank in bars, parking lots, apartments, airports, *477airplanes, restaurants, hotels, at various ports, and aboard Exxon tankers.” In re Exxon Valdez, No. A89-0095-CV, Order No. 265 (D. Alaska, Jan. 27, 1995), p. 5, App. F to Pet. for Cert. 255a-256a (hereinafter Order 265). The jury also heard contested testimony that Hazelwood drank with Exxon officials and that members of the Exxon management knew of his relapse. See ibid. Although Exxon had a clear policy prohibiting employees from serving onboard within four hours of consuming alcohol, see In re Exxon Valdez, 270 F. 3d 1215, 1238 (CA9 2001), Exxon presented no evidence that it monitored Hazelwood after his return to duty or considered giving him a shoreside assignment, see Order 265, p. 5, supra, at 256a. Witnesses testified that before the Valdez left port on the night of the disaster, Hazelwood downed at least five double vodkas in the waterfront bars of Valdez, an intake of about 15 ounces of 80-proof alcohol, enough “that a non-alcoholic would have passed out.” 270 F. 3d, at 1236.

The ship sailed at 9:12 p.m. on March 23, 1989, guided by a state-licensed pilot for the first leg out, through the Valdez Narrows. At 11:20 p.m., Hazelwood took active control and, owing to poor conditions in the outbound shipping lane, radioed the Coast Guard for permission to move east across the inbound lane to a less icy path. Under the conditions, this was a standard move, which the last outbound tanker had also taken, and the Coast Guard cleared the Valdez to cross the inbound lane. The tanker accordingly steered east toward clearer waters, but the move put it in the path of an underwater reef off Bligh Island, thus requiring a turn back west into the shipping lane around Busby Light, north of the reef.

Two minutes before the required turn, however, Hazel-wood left the bridge and went down to his cabin in order, he said, to do paperwork. This decision was inexplicable. There was expert testimony that, even if their presence is not strictly necessary, captains simply do not quit the bridge during maneuvers like this, and no paperwork could have *478justified it. And in fact the evidence was that Hazelwood’s presence was required, both because there should have been two officers on the bridge at all times and his departure left only one, and because he was the only person on the entire ship licensed to navigate this part of Prince William Sound. To make matters worse, before going below Hazelwood put the tanker on autopilot, speeding it up, making the turn trickier, and any mistake harder to correct.

As Hazelwood left, he instructed the remaining officer, third mate Joseph Cousins, to move the tanker back into the shipping lane once it came abeam of Busby Light. Cousins, unlicensed to navigate in those waters, was left alone with helmsman Robert Kagan, a nonofficer. For reasons that remain a mystery, they failed to make the turn at Busby Light, and a later emergency maneuver attempted by Cousins came too late. The tanker ran aground on Bligh Reef, tearing the hull open and spilling 11 million gallons of crude oil into Prince William Sound.

After Hazelwood returned to the bridge and reported the grounding to the Coast Guard, he tried but failed to rock the Valdez off the reef, a maneuver which could have spilled more oil and caused the ship to founder.1 The Coast Guard’s nearly immediate response included a blood test of Hazel-wood (the validity of which Exxon disputes) showing a blood-alcohol level of .061 11 hours after the spill. Supp. App. 307sa. Experts testified that to have this much alcohol in his bloodstream so long after the accident, Hazelwood at *479the time of the spill must have had a blood-alcohol level of around .241, Order 265, p. 5, supra, at 256a, three times the legal limit for driving in most States.

In the aftermath of the disaster, Exxon spent around $2.1 billion in cleanup efforts. The United States charged the company with criminal violations of the Clean Water Act, 33 U. S. C. §§ 1311(a) and 1319(c)(1); the Refuse Act of 1899, 33 U. S. C. §§ 407 and 411; the Migratory Bird Treaty Act, 16 U. S. C. §§ 703 and 707(a); the Ports and Waterways Safety Act, 33 U. S. C. § 1232(b)(1); and the Dangerous Cargo Act, 46 U. S. C. § 3718(b). Exxon pleaded guilty to violations of the Clean Water Act, the Refuse Act, and the Migratory Bird Treaty Act and agreed to pay a $150 million fine, later reduced to $25 million plus restitution of $100 million. A civil action by the United States and the State of Alaska for environmental harms ended with a consent decree for Exxon to pay at least $900 million toward restoring natural resources, and it paid another $303 million in voluntary settlements with fishermen, property owners, and other private parties.

B

The remaining civil cases were consolidated into this one against Exxon, Hazelwood, and others. The District Court for the District of Alaska divided the plaintiffs seeking compensatory damages into three classes: commercial fishermen, Native Alaskans, and landowners. At Exxon’s behest, the court also certified a mandatory class of all plaintiffs seeking punitive damages, whose number topped 32,000. Respondents here, to whom we will refer as Baker for convenience, are members of that class.

For the purposes of the case, Exxon stipulated to its negligence in the Valdez disaster and its ensuing liability for compensatory damages. The court designed the trial accordingly: Phase I considered Exxon and Hazelwood’s recklessness and thus their potential for punitive liability; Phase II set compensatory damages for commercial fishermen and *480Native Alaskans; and Phase III determined the amount of punitive damages for which Hazelwood and Exxon were each liable. (A contemplated Phase IV, setting compensation for still other plaintiffs, was obviated by settlement.)

In Phase I, the jury heard extensive testimony about Hazelwood’s alcoholism and his conduct on the night of the spill, as well as conflicting testimony about Exxon officials’ knowledge of Hazelwood’s backslide. At the close of Phase I, the court instructed the jury in part that

“[a] corporation is responsible for the reckless acts of those employees who are employed in a managerial capacity while acting in the scope of their employment. The reckless act or omission of a managerial officer or employee of a corporation, in the course and scope of the performance of his duties, is held in law to be the reckless act or omission of the corporation.” App. K to Pet. for Cert. 301a.

The court went on that “[a]n employee of a corporation is employed in a managerial capacity if the employee supervises other employees and has responsibility for, and authority over, a particular aspect of the corporation’s business.” Ibid. Exxon did not dispute that Hazelwood was a managerial employee under this definition, see App. G, id., at 264a, n. 8, and the jury found both Hazelwood and Exxon reckless and thus potentially liable for punitive damages, App. L, id., at 303a.2

In Phase II, the jury awarded $287 million in compensatory damages to the commercial fishermen. After the court deducted released claims, settlements, and other payments, the *481balance outstanding was $19,590,257. Meanwhile, most of the Native Alaskan class had settled their compensatory claims for $20 million, and those who opted out of that settlement ultimately settled for a total of around $2.6 million.

In Phase III, the jury heard about Exxon’s management’s acts and omissions arguably relevant to the spill. See App. 1291-1320, 1353-1367. At the close of evidence, the court instructed the jurors on the purposes of punitive damages, emphasizing that they were designed not to provide compensatory relief but to punish and deter the defendants. See App. to Brief in Opposition 12a-14a. The court charged the jury to consider the reprehensibility of the defendants’ conduct, their financial condition, the magnitude of the harm, and any mitigating facts. Id., at 15a. The jury awarded $5,000 in punitive damages against Hazelwood and $5 billion against Exxon.

On appeal, the Court of Appeals for the Ninth Circuit upheld the Phase I jury instruction on corporate liability for acts of managerial agents under Circuit precedent. See In re Exxon Valdez, 270 F. 3d, at 1236 (citing Protectus Alpha Nav. Co. v. North Pacific Grain Growers, Inc., 767 F. 2d 1379 (CA9 1985)). With respect to the size of the punitive-damages award, however, the Circuit remanded twice for adjustments in light of this Court’s due process cases before ultimately itself remitting the award to $2.5 billion. See 270 F. 3d, at 1246-1247; 472 F. 3d 600, 601, 625 (2006) (per curiam), and 490 F. 3d 1066, 1068 (2007).

We granted certiorari to consider whether maritime law allows corporate liability for punitive damages on the basis of the acts of managerial agents, whether the Clean Water Act (CWA), 86 Stat. 816, 33 U. S. C. § 1251 et seq. (2000 ed. and Supp. V), forecloses the award of punitive damages in maritime spill cases, and whether the punitive damages awarded against Exxon in this case were excessive as a matter of maritime common law. 552 U. S. 989 (2007). We now vacate and remand.

*482II

On the first question, Exxon says that it was error to instruct the jury that a corporation “is responsible for the reckless acts of. . . employees ... in a managerial capacity while acting in the scope of their employment.”3 App. K to Pet. for Cert. 301a. The Courts of Appeals have split on this issue,4 and the company relies primarily on two cases, The Amiable Nancy, 3 Wheat. 546 (1818), and Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101 (1893), to argue that this Court’s precedents are clear that punitive damages are not available against a shipowner for a shipmaster’s recklessness. The former was a suit in admiralty against the owners of The Scourge, a privateer whose officers and crew boarded and plundered a neutral ship, The Amiable Nancy. In upholding an award of compensatory damages, Justice Story observed that,

*483“if this were a suit against the original wrong-doers, it might be proper to . . . visit upon them in the shape of exemplary damages, the proper punishment which belongs to such lawless misconduct. But it is to be considered, that this is a suit against the owners of the privateer, upon whom the law has, from motives of policy, devolved a responsibility for the conduct of the officers and crew employed by them, and yet, from the nature of the service, they can scarcely ever be able to secure to themselves an adequate indemnity in cases of loss. They are innocent of the demerit of this transaction, having neither directed it, nor countenanced it, nor participated in it in the slightest degree. Under such circumstances, we are of opinion, that they are bound to repair all the real injuries and personal wrongs sustained by the libellants, but they are not bound to the extent of vindictive damages.” The Amiable Nancy, supra, at 558-559 (emphasis in original).

Exxon takes this statement as a rule barring punitive liability against shipowners for actions by underlings not “directed,” “countenanced,” or “participated in” by the owners.

Exxon further claims that the Court confirmed this rule in Lake Shore, supra, a railway case in which the Court relied on The Amiable Nancy to announce, as a matter of pre-Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), general common law, that “[t]hough [a] principal is liable to make compensation for [intentional torts] by his agent, he is not liable to be punished by exemplary damages for an intent in which he did not participate.” 147 U. S., at 110. Because maritime law remains federal common law, and because the Court has never revisited the issue, Exxon argues that Lake Shore endures as sound evidence of maritime law. And even if the rule of Amiable Nancy and Lake Shore does not control, Exxon urges the Court to fall back to a modern-day variant adopted in the context of Title VII of the Civil Rights Act of 1964 in Kolstad v. American Dental Assn., 527 U. S. 526, 544 (1999), *484that employers are not subject to punitive damages for discriminatory conduct by their managerial employees if they can show that they maintained and enforced good-faith anti-discrimination policies.

Baker supports the Ninth Circuit in upholding the instruction, as it did on the authority of Protectus Alpha Nav. Co., 767 F. 2d 1379, which followed the Restatement rule recognizing corporate liability in punitive damages for reckless acts of managerial employees, see 4 Restatement (Second) of Torts § 909(c) (1977) (hereinafter Restatement). Baker says that The Amiable Nancy offers nothing but dictum, because punitive damages were not at issue, and that Lake Shore merely rejected company liability for the acts of a railroad conductor, while saying nothing about liability for agents higher up the ladder, like ship captains. He also makes the broader point that the opinion was criticized for failing to reflect the majority rule of its own time, not to mention its conflict with the respondeat superior rule in the overwhelming share of land-based jurisdictions today. Baker argues that the maritime rule should conform to modern land-based common law, where a majority of States allow punitive damages for the conduct of any employee, and most others follow the Restatement, imposing liability for managerial agents.

The Court is equally divided on this question, and “[i]f the judges are divided, the reversal cannot be had, for no order can be made.” Durant v. Essex Co., 7 Wall. 107, 112 (1869). We therefore leave the Ninth Circuit’s opinion undisturbed in this respect, though it should go without saying that the disposition here is not precedential on the derivative liability question. See, e. g., Neil v. Biggers, 409 U. S. 188, 192 (1972); Ohio ex rel. Eaton v. Price, 364 U. S. 263, 264 (1960) (opinion of Brennan, J.).

Ill

Exxon next says that, whatever the availability of maritime punitive damages at common law, the CWA preempts them. Baker responds with both procedural and merits arguments, and although we do not dispose of the issue on pro*485cedure, a short foray into its history is worthwhile as a cautionary tale.

At the pretrial stage, the District Court controlled a flood of motions by an order staying them for any purpose except discovery. The court ultimately adopted a case-management plan allowing receipt of seven specific summary judgment motions already scheduled, and requiring a party with additional motions to obtain the court’s leave. One of the motions scheduled sought summary judgment for Exxon on the ground that the Trans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43 U. S. C. §§ 1651-1656, displaced maritime common law and foreclosed the availability of punitive damages. The District Court denied the motion.

After the jury returned the Phase III punitive-damages verdict on September 16,1994, the parties stipulated that all post-trial Federal Rules of Civil Procedure 50 and 59 motions would be filed by September 30, and the court so ordered. App. 1410-1411. Exxon filed 11 of them, including several seeking a new trial or judgment as a matter of law on one ground or another going to the punitive-damages award, all of which were denied along with the rest. On October 23, 1995, almost 13 months after the stipulated motions deadline, Exxon moved for the District Court to suspend the motions stay, App. to Brief in Opposition 28a-29a, to allow it to file a “Motion and Renewed Motion ... for Judgment on Punitive Damages Claims” under Rules 49(a) and 58(2) and, “to the extent they may be applicable, pursuant to Rules 50(b), 56(b), 56(d), 59(a), and 59(e),”5 id., at 30a-31a. Exxon’s accompa*486nying memorandum asserted that two recent cases, Glynn v. Roy Al Boat Management Corp., 57 F. 3d 1495 (CA9 1995), and Guevara v. Maritime Overseas Corp., 59 F. 3d 1496 (CA5 1995), suggested that the rule of maritime punitive damages was displaced by federal statutes, including the CWA. On November 2, 1995, the District Court summarily denied Exxon’s request to file the motion, App. to Brief in Opposition 35a, and in January 1996 (following the settlement of the Phase IV compensatory claims) the court entered final judgment.

Exxon renewed the CWA preemption argument before the Ninth Circuit. The Court of Appeals recognized that Exxon had raised the CWA argument for the first time 13 months after the Phase III verdict, but decided that the claim “should not be treated as waived,” because Exxon had “consistently argued statutory preemption” throughout the litigation, and the question was of “massive . . . significance” given the “ambiguous circumstances” of the case. 270 F. 3d, at 1229. On the merits, the Circuit held that the CWA did not preempt maritime common law on punitive damages. Id., at 1230.

Although we agree with the Ninth Circuit’s conclusion, its reasons for reaching it do not hold up. First, the reason the court thought that the CWA issue was not in fact waived was that Exxon had alleged other statutory grounds for preemption from the outset of the trial. But that is not enough. *487It is true that “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Yee v. Escondido, 503 U. S. 519, 534 (1992). But this principle stops well short of legitimizing Exxon’s untimely motion. If “statutory preemption” were a sufficient claim to give Exxon license to rely on newly cited statutes anytime it wished, a litigant could add new constitutional claims as he went along, simply because he had “consistently argued” that a challenged regulation was unconstitutional. See id., at 533 (rejecting substantive due process claim by takings petitioners who failed to preserve it below); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 277, n. 23 (1989) (rejecting due process claim by Eighth Amendment petitioners).

That said, the motion still addressed the Circuit’s discretion, to which the “massive” significance of the question and the “ambiguous circumstances” of the case were said to be relevant. 270 F. 3d, at 1229. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below,” Singleton v. Wulff 428 U. S. 106, 120 (1976), when to deviate from this rule being a matter “left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases,” id., at 121. We have previously stopped short of stating a general principle to contain appellate courts’ discretion, see ibid., and we exercise the same restraint today.6

*488As to the merits, we agree with the Ninth Circuit that Exxon’s late-raised CWA claim should fail. There are two ways to construe Exxon’s argument that the CWA’s penalties for water pollution, see 33 U. S. C. § 1321 (2000 ed. and Supp. V), preempt the common law punitive-damages remedies at issue here. The company could be saying that any tort action predicated on an oil spill is preempted unless § 1321 expressly preserves it. Section 1321(b) (2000 ed.) protects “the navigable waters of the United States, adjoining shorelines,. . . [and] natural resources” of the United States, subject to a saving clause reserving “obligations . . . under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil,” § 1321(o). Exxon could be arguing that, because the saving clause makes no mention of preserving punitive damages for economic loss, they are preempted. But so, of course, would a number of other categories of damages awards that Exxon did not claim were preempted. If Exxon were correct here, there would be preemption of provisions for compensatory damages for thwarting economic activity or, for that matter, compensatory damages for physical, personal injury from oil spills or other water pollution. But we find it too hard to conclude that a statute expressly geared to protecting “water,” “shorelines,” and “natural resources” *489was intended to eliminate sub silentio oil companies’ common law duties to refrain from injuring the bodies and livelihoods of private individuals.

Perhaps on account of its overbreadth, Exxon disclaims taking this position, admitting that the CWA does not displace compensatory remedies for consequences of water pollution, even those for economic harms. See, e. g., Reply Brief for Petitioners 15-16. This concession, however, leaves Exxon with the equally untenable claim that the CWA somehow preempts punitive damages, but not compensatory damages, for economic loss. But nothing in the statutory text points to fragmenting the recovery scheme this way, and we have rejected similar attempts to sever remedies from their causes of action. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255-256 (1984). All in all, we see no clear indication of congressional intent to occupy the entire field of pollution remedies, see, e. g., United States v. Texas, 507 U. S. 529, 534 (1993) (“In order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law” (internal quotation marks omitted)); nor for that matter do we perceive that punitive damages for private harms will have any frustrating effect on the CWA remedial scheme, which would point to preemption.7

IV

Finally, Exxon raises an issue of first impression about punitive damages in maritime law, which falls within a federal court’s jurisdiction to decide in the manner of a common law *490court, subject to the authority of Congress to legislate otherwise if it disagrees with the judicial result. See U. S. Const., Art. Ill, § 2, cl. 1; see, e. g., Edmonds v. Compagnie Generate Transatlantique, 443 U. S. 256, 259 (1979) (“Admiralty law is judge-made law to a great extent”); Romero v. International Terminal Operating Co., 358 U. S. 354, 360-361 (1959) (constitutional grant “empowered the federal courts ... to continue the development of [maritime] law”). In addition to its resistance to derivative liability for punitive damages and its preemption claim already disposed of, Exxon challenges the size of the remaining $2.5 billion punitive-damages award. Other than its preemption argument, it does not offer a legal ground for concluding that maritime law should never award punitive damages, or that none should be awarded in this case, but it does argue that this award exceeds the bounds justified by the punitive-damages goal of deterring reckless (or worse) behavior and the consequently heightened threat of harm. The claim goes to our understanding of the place of punishment in modern civil law and reasonable standards of process in administering punitive law, subjects that call for starting with a brief account of the history behind today’s punitive damages.

A

The modern Anglo-American doctrine of punitive damages dates back at least to 1763, when a pair of decisions by the Court of Common Pleas recognized the availability of damages “for more than the injury received.” Wilkes v. Wood, Lofft 1, 18, 98 Eng. Rep. 489, 498 (1763) (Lord Chief Justice Pratt). In Wilkes v. Wood, one of the foundations of the Fourth Amendment, exemplary damages awarded against the Secretary of State, responsible for an unlawful search of John Wilkes’s papers, were a spectacular £4,000. See generally Boyd v. United States, 116 U. S. 616, 626 (1886). And in Ruckle v. Money, 2 Wils. 205, 206-207, 95 Eng. Rep. 768, 768-769 (K. B. 1763), the same judge who is recorded in *491Wilkes gave an opinion upholding a jury’s award of £300 (against a government officer again) although “if the jury had been confined by their oath to consider the mere personal injury only perhaps [£20] damages would have been thought damages sufficient.”

Awarding damages beyond the compensatory was not, however, a wholly novel idea even then, legal codes from ancient times through the Middle Ages having called for multiple damages for certain especially harmful acts. See, e. g., Code of Hammurabi § 8, p. 13 (R. Harper ed. 1904) (tenfold penalty for stealing the goat of a freed man); Statute of Gloucester, 1278, 6 Edw. I, ch. 5, 1 Stat. at Large 66 (treble damages for waste). But punitive damages were a common law innovation untethered to strict numerical multipliers, and the doctrine promptly crossed the Atlantic, see, e.g., Genay v. Norris, 1 S. C. L. 6, 7 (1784); Coryell v. Colbaugh, 1 N. J. L. 77 (1791), to become widely accepted in American courts by the middle of the 19th century, see, e. g., Day v. Woodworth, 13 How. 363, 371 (1852).

B

Early common law cases offered various rationales for punitive-damages awards, which were then generally dubbed “exemplary,” implying that these verdicts were justified as punishment for extraordinary wrongdoing, as in Wilkes’s case. Sometimes, though, the extraordinary element emphasized was the damages award itself, the punishment being “for example’s sake,” Tullidge v. Wade, 3 Wils. 18, 19, 95 Eng. Rep. 909 (K. B. 1769) (Lord Chief Justice Wilmot), “to deter from any such proceeding for the future,” Wilkes, supra, at 19, 98 Eng. Rep., at 498-499. See also Coryell, supra, at 77 (instructing the jury “to give damages for example’s sake, to prevent such offences in [the] future”).

A third historical justification, which showed up in some of the early cases, has been noted by recent commentators, and that was the need “to compensate for intangible injuries, *492compensation which was not otherwise available under the narrow conception of compensatory damages prevalent at the time.”8 Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 437-438, n. 11 (2001) (citing, inter alia, Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957)). But see Sebok, What Did Punitive Damages Do? 78 Chi.-Kent L. Rev. 163, 204 (2003) (arguing that “punitive damages have never served the compensatory function attributed to them by the Court in Cooper”). As the century progressed, and “the types of compensatory damages available to plaintiffs . . . broadened,” Cooper Industries, supra, at 438, n. 11, the consequence was that American courts tended to speak of punitive damages as separate and distinct from compensatory damages, see, e. g., Day, supra, at 371 (punitive damages “hav[e] in view the enormity of [the] offence rather than the measure of compensation to the plaintiff”). See generally 1 L. Schlueter, Punitive Damages §§ 1.3(C)-(D), 1.4(A) (5th ed. 2005) (hereinafter Schlueter) (describing the “almost total eclipse of the compensatory function” in the decades following the 1830s).

Regardless of the alternative rationales over the years, the consensus today is that punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.9 This consensus informs the doctrine in most *493modern American jurisdictions, where juries are customarily instructed on twin goals of punitive awards. See, e. g., Cal. Jury Instr., Civil, No. 14.72.2 (2008) (“You must now determine whether you should award punitive damages against defendant[s] ... for the sake of example and by way of punishment”); N. Y. Pattern Jury Instr., Civil, No. 2:278 (2007) (“The purpose of punitive damages is not to compensate the plaintiff but to punish the defendant.. . and thereby to discourage the defendant . . . from acting in a similar way in the future”). The prevailing rule in American courts also limits punitive damages to cases of what the Court in Day, supra, at 371, spoke of as “enormity,” where a defendant’s conduct is “outrageous,” 4 Restatement §908(2), owing to “gross negligence,” “willful, wanton, and reckless indifference for the rights of others,” or behavior even more deplorable, 1 Schlueter § 9.3(A).10

Under the umbrellas of punishment and its aim of deterrence, degrees of relative blameworthiness are apparent. Reckless conduct is not intentional or malicious, nor is it necessarily callous toward the risk of harming others, as opposed to unheedful of it. See, e.g., 2 Restatement §500, Comment a, pp. 587-588 (1964) (“Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know ... of facts which create a high *494degree of risk of. . . harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so”). Action taken or omitted in order to augment profit represents an enhanced degree of punishable culpability, as of course does willful or malicious action, taken with a purpose to injure. See 4 id., § 908, Comment e, p. 466 (1977) (“In determining the amount of punitive damages, . . . the trier of fact can properly consider not merely the act itself but all the circumstances including the motives of the wrongdoer . . . ”); cf. Alaska Stat. § 09.17.020(g) (2006) (higher statutory limit applies where conduct was motivated by financial gain and its adverse consequences were known to the defendant); Ark. Code Ann. § 16-55-208(b) (2005) (statutory limit does not apply where the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage).

. Regardless of culpability, however, heavier punitive awards have been thought to be justifiable when wrongdoing is hard to detect (increasing chances of getting away with it), see, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559, 582 (1996) (“A higher ratio may also be justified in cases in which the injury is hard to detect”), or when the value of injury and the corresponding compensatory award are small (providing low incentives to sue), see, e. g., ibid. (“[L]ow awards of compensatory damages may properly support a higher ratio ... if, for example, a particularly egregious act has resulted in only a small amount of economic damages”); 4 Restatement § 908, Comment c, p. 465 (“Thus an award of nominal damages ... is enough to support a further award of punitive damages, when a tort ... is committed for an outrageous purpose, but no significant harm has resulted”). And, with a broadly analogous object, some regulatory schemes provide by statute for multiple recovery in order to *495induce private litigation to supplement official enforcement that might fall short if unaided. See, e. g., Reiter v. Sonotone Corp., 442 U. S. 330, 344 (1979) (discussing antitrust treble damages).

C

State regulation of punitive damages varies. A few States award them rarely, or not at all. Nebraska bars punitive damages entirely, on state constitutional grounds. See, e. g., Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 857, 443 N. W. 2d 566, 574 (1989) (per curiam). Four others permit punitive damages only when authorized by statute: Louisiana, Massachusetts, and Washington as a matter of common law, and New Hampshire by statute codifying common law tradition. See Ross v. Conoco, Inc., 02-0299, p. 14 (La. 10/15/02), 828 So. 2d 546, 555; Flesner v. Technical Communications Corp., 410 Mass. 805, 813, 575 N. E. 2d 1107, 1112 (1991); Fisher Properties, Inc. v. Arden-Mayfair, Inc., 106 Wash. 2d 826, 852, 726 P. 2d 8, 23 (1986); N. H. Rev. Stat. Ann. § 507:16 (1997); see also Fay v. Parker, 53 N. H. 342, 382 (1872). Michigan courts recognize only exemplary damages supportable as compensatory, rather than truly punitive, see Peisner v. Detroit Free Press, Inc., 104 Mich. App. 59, 68, 304 N. W. 2d 814, 817 (1981), while Connecticut courts have limited what they call punitive recovery to the “expenses of bringing the legal action, including attorney’s fees, less taxable costs,” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 517, n. 38, 656 A. 2d 1009, 1029, n. 38 (1995).

As for procedure, in most American jurisdictions the amount of the punitive award is generally determined by a jury in the first instance, and that “determination is then reviewed by trial and appellate courts to ensure that it is reasonable.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 15 (1991); see also Honda Motor Co. v. Oberg, 512 U. S. 415, 421-426 (1994).11 Many States have gone further by *496imposing statutory limits on punitive awards, in the form of absolute monetary caps, see, e.g., Va. Code Ann. § 8.01-38.1 (Lexis 2007) ($350,000 cap), a maximum ratio of punitive to compensatory damages, see, e. g., Ohio R