“Retributive Damages” and the Death of Private Ordering

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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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