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Punitive Damages and Private Ordering Fetishism: A Reply to Professors Krauss and Owen


Dan Markel


Florida State University College of Law (deceased)

April 29, 2010

University of Pennsylvania Law Review PENNumbra, Vol. 158, p. 283, 2010
FSU College of Law, Public Law Research Paper No. 440

Abstract:     
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 articles last year. 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)

You can find Professor Owen's Response here:

David G. Owen, Response, Aggravating Punitive Damages, 158 U. Pa. L. Rev. PENNumbra 181 (2010)

Number of Pages in PDF File: 22

Keywords: punitive damages, tort law, punishment, insurance, settlement

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Date posted: May 3, 2010 ; Last revised: June 7, 2010

Suggested Citation

Markel, Dan, Punitive Damages and Private Ordering Fetishism: A Reply to Professors Krauss and Owen (April 29, 2010). University of Pennsylvania Law Review PENNumbra, Vol. 158, p. 283, 2010 ; FSU College of Law, Public Law Research Paper No. 440. Available at SSRN: http://ssrn.com/abstract=1597728

Contact Information

Dan Markel (Contact Author)
Florida State University College of Law (deceased)
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