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Article   |   Volume 157, Issue 5

How Should Punitive Damages Work?

By
Dan Markel

May 2009










In Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, Professor Dan Markel argued that the purpose of punitive damages should be to advance—in part—the public’s interest in retributive justice. These “retributive damages” should be an expressly intermediate sanction, independent of other remedial or penal options. Markel provided the basic structure of these retributive damages; however, the theoretical nature of the proposal did no more than touch on how they would operate in practice.

In How Should Punitive Damages Work?, Markel addresses the next question: how should punitive damages, including retributive damages, work? This question is especially timely in light of the Supreme Court’s recent decision in Philip Morris USA v. Williams, which held that juries may not consider the harms to nonparties in determining punitive damages awards.

To make punitive damages work, Markel argues that we must first separate retributive damages from other extracompensatory damages meant to achieve cost internalization or to vindicate the victim’s dignity interests. Because these three purposes are distinct, conflating them carries the danger of both under- and overprotection of various defendants. Once we understand these purposes and the distinctions between them, we should be able to map them on to our existing institutional design for civil damages. Markel begins, first, by explaining why and how defendants should enjoy certain procedural protections depending on which purpose the damages serve, and second, by addressing two critical implementation issues associated with this pluralistic scheme of extracompensatory damages: insurance and settlement.

How Should Punitive Damages Work? - PennLawReview.com


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Dan Markel


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Michael I. Krauss


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