Download this Paper Open PDF in Browser

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

University of Pennsylvania Law Review PENNumbra, Vol. 158, p. 283, 2010

FSU College of Law, Public Law Research Paper No. 440

22 Pages Posted: 3 May 2010 Last revised: 7 Jun 2010

Dan Markel

Florida State University College of Law (Deceased)

Date Written: April 29, 2010

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)

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

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: https://ssrn.com/abstract=1597728

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

Paper statistics

Downloads
96
Rank
230,940
Abstract Views
1,499