February 23, 2010
Critiques of Markel's "How Should Punitive Damages Work"
PENNumbra, the on-line companion of the University of Pennsylvania Law Review, has published two responses to Professor Dan Markel's latest article on his retributive damages theory, "How Should Punitive Damages Work?"
David S. Owen (University of South Carolina) addresses Markel's theory in "Aggravating Punitive Damages" (pdf). The abstract provides:
In Aggravating Punitive Damages, Professor David Owen applauds much of Professor Markel’s vision of how punitive damages law should operate, such as using a “clear and convincing” standard of proof for this quasi-criminal remedy. While acknowledging that Markel’s public law insights illuminate a host of perplexities, including many nettlesome issues under the due process umbrella that now cabins punitive damage awards, Owen questions Markel’s bold proposal to redirect the retributive focus of this hybrid remedy away from victims of aggravated wrongdoing to the public at large—such as shifting retributive damage awards from victims to the public. Owen argues that, most fundamentally, punitive damages are best viewed as a form of robust, retributive restitution for victims of flagrant wrongdoing and that this peculiar remedy should remain firmly rooted where it began and presently resides—in private law.
Michael I. Krauss (George Mason) also reviews Markel's article in "'Retributive Damages' and the Death of Private Ordering." (pdf) The abstract provides:
In “Retributive Damages” and the Death of Private Ordering, Professor Michael Krauss explores the implications of Markel’s retributive damages for the private ordering/public ordering divide. Relying on Aristotle’s conception of corrective justice and eighteenth-century common law, Krauss makes the philosophical and historical case for the proper, limited role of punitive damages. He argues that punitive damages are only legitimate where used to close loopholes in conventional tort law remedies—e.g., as compensation for moral offenses. Accordingly, he contends that the retributive use of punitive damages is a pollution of tort law by public ordering principles. Finally, even for those who accept the theoretical premise of retributive damages, Krauss identifies several potential problems with Markel’s scheme—theoretical, practical, and constitutional.
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