Punitive Damages and Private Ordering Fetishism

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In Punitive Damages and Private Ordering Fetishism, Professor Dan Markel responds to Professor Krauss's and Professor Owen's critiques of his piece, How Should Punitive Damages Work?. Professor Markel seeks to clarify some misunderstandings regarding that piece, including how his proposal for reforming punitive damages schemes would work in practice. He begins by noting that while observers of tort law attempt to analyze reform proposals for punitive damages within the traditional framework, his prescriptions are largely forward‐looking and should be viewed in light of the pluralistic worldview Markel takes in How Should Punitive Damages Work?. Markel argues that punitive damages can be seen as advancing a number of separate goals—including cost internalization, victim vindication, and the public interest in retributive justice—without threatening its essential restitutionary attributes. With the right safeguards, says Markel, a system of extracompensatory damages can advance these purposes. He concludes by noting that Krauss's and Owen's fears regarding the economic and legal consequences of such a pluralistic punitive damages framework will not be realized, provided that the proper constraints are put in place.

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