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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." 

Who, me?

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.

This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framework I developed in two recent articles. Those clarifications address issues including but not limited to how punitive damages law ought to address the wealth or financial condition of the defendant, the defendant’s status as a corporation, settlement dynamics and insurance. Before I answer Professor Krauss’s and Professor Owen’s challenges in those particular domains, however, I begin the essay with some more general observations about what role tort law could and should serve. My hope is that these initial remarks will provide some context for the nature and significance of the particular policy disputes we have with respect to punitive damages law.

You can find the articles Professor Krauss and Owen respond to here:

Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239-340 (2009) (available at http://ssrn.com/abstract=991865 )

Markel, How Should Punitive Damages Work?, 157 University of Pennsylvania Law Review 1383 (2009) (available at http://ssrn.com/abstract=1260019

You can find Professor Krauss's Response here:
Michael I. Krauss, Response, “Retributive Damages” and the Death of Private Ordering, 158 U. Pa. L. Rev. PENNumbra 167 (2010), http://www.pennumbra.com/responses/02-2010/Krauss.pdf

You can find Professor Owen's Response here:
David G. Owen, Response, Aggravating Punitive Damages, 158 U. Pa. L. Rev. PENNumbra 181 (2010), http://www.pennumbra.com/responses/02-2010/Owen.pdf

Posted by Administrators on April 29, 2010 at 10:31 AM in Article Spotlight, Criminal Law, Dan Markel, Legal Theory, Retributive Damages, Torts | Permalink


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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

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

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