The unbearable lightness of being? The quantification of collective moral damages through the perspective of the phenomenon of lucrative illegality and the Dieselgate

Abstract

This article examines how the lucrative illegality is influenced by the experience of quantification of collective moral damage. The case study of Dieselgate reveals a setting of under-deterrence in Brazil, due to the path dependence in the judicial system resulting from the division of contrasting precedents of the higher courts. The unbearable lightness of economic sanctions applied to companies is a challenge to be overcome, which can be done by abandoning the quantification of collective moral damages by arbitration of minimum amount. The adoption of fairer criteria and methods, which would actually take into account the nuances of each concrete case, is the only means to duly regard the functions of civil liability to an adequate extent. Thus, it is the mathematical turn in law that can bring balance to the incentives system in collective responsibility, curbing lucrative illegality through the irradiating effects that resonate from national courts.