Response  |  Volume 158

Aggravating Punitive Damages

By
David G. Owen
Posted on Feb. 16, 2010

Response - Aggravating Punitive Damages








In Aggravating Punitive Damages, Professor David Owen applauds much of Professor Markel’s vision of how punitive damages law should operate, such as using a “clear and convincing” standard of proof for this quasi-criminal remedy. While acknowledging that Markel’s public law insights illuminate a host of perplexities, including many nettlesome issues under the due process umbrella that now cabins punitive damage awards, Owen questions Markel’s bold proposal to redirect the retributive focus of this hybrid remedy away from victims of aggravated wrongdoing to the public at large—such as shifting retributive damage awards from victims to the public. Owen argues that, most fundamentally, punitive damages are best viewed as a form of robust, retributive restitution for victims of flagrant wrongdoing and that this peculiar remedy should remain firmly rooted where it began and presently resides—in private law.


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Doctrinal Dilemma

Girardeau A. Spann