Thursday, April 29, 2010
Punitive Damages and Private Ordering Fetishism
In two recent response essays by distinguished torts scholars, Professors David Owen and Michael Krauss, I was charged with "aggravating punitive damages" and instigating the "death of private ordering."
In seriousness, I have a somewhat more considered and elaborated answer, and I've got a draft of that reply in a new essay up on SSRN by the title of Punitive Damages and Private Ordering Fetishism. I'd be grateful if you could share with me any thoughts or reactions; it weighs in at just under 10,000 words. Here's the abstract, with links to the full conversation after the jump.
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Even as a purely descriptive matter, it seems hard to object to the contention that tort law is not purely about compensation but also sometimes reflects society's judgment that the defendant has transgressed social norms and should "pay."
Posted by: lyrissa | May 1, 2010 2:25:16 PM
That's true, Lyrissa, but I'm not sure Owen and Krauss were denying that tort law reflects those social norms. Rather, I think they were emphasizing that the victim, not society, is the proper recipient of that payment, and that the victim should be the person who controls whether an action should be brought against the defendant (at least in a civil system of redress).
Posted by: anon | May 1, 2010 11:01:43 PM