This chapter distinguishes different manners through which individuals and collective entities engage in reprehensible behavior and, on that basis, identifies two general contexts of wrongdoing: (1) a one-on-one context involving tortious situations where one individual directs her conduct toward another specific individual and (2) a collective context, which refers to tortious situations arising from impersonal market transactions between consumers and corporations. Each context of wrongdoing provides a framework from which distinctive understandings of punitive damages can be explored, one where the retributive reaction seeks to address invasions of dignitary interests and another for cases in which the retributive reaction responds to violations of societal trust. Ultimately, the chapter argues that any informed conversation on the place of retribution in the mass-market context requires improved understandings of the relevant markers for reprehensible behavior in that context (particularly the problem of asymmetry of information between manufacturers and consumers) and the correlative retributive motivations of consumers elicited in those wrongful situations.

This chapter sets the stage for further examination of the possibility that punitive damages in product liability litigation represent an institution that not only empowers consumers for ex post private redress but also provides a legitimate channel to communicate self-regard through the courts by denouncing the open violations of societal trust that manufacturers’ wrongful behaviors convey when they fail to fulfill consumers’ safety expectations by prioritizing their own private gain over the risk of significant harm to consumers. The chapter advances an understanding of punitive damages in the product liability context centered on consumers’ betrayal aversion as the retributive motivation that responds to violations of societal trust in the marketplace. By contrasting expert versus layperson approaches to “societal trust,” the chapter argues that punitive damages should be understood as relational retributive sanctions that communicate disapproval for purposes of the victims’ self-assertion, not as prices solely meant to fine-tune cost–benefit formulas in the interest of optimal deterrence. The ultimate aim of the chapter is to explore the expressive dimension of punitive awards that is worth maintaining. This dimension becomes clear when we distinguish retribution from deterrence in cases where corporations blatantly violate societal trust in the mass-market context.

This chapter provides an overview of key developments in the business and human rights landscape, more recent global efforts, and challenges that remain. The first half of this introductory chapter discusses the landmark policy efforts over the past forty years. Given the widespread development of voluntary or “soft law” initiatives, the second half of this chapter explores the fundamental challenge in business and human rights: the question of accountability. Even in cases of wrongdoing, jurisdictional issues, the corporate veil, and lack of political will present important challenges to holding firms accountable. This chapter tells the old narrative of corporate impunity and governance gaps; it introduces a new story that draws from systematic data and illustrative examples to explore the pathways by which victims gain access to remedy mechanisms.