Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction

102 Pages Posted: 14 Jun 2007 Last revised: 3 Feb 2009

See all articles by Dan Markel

Dan Markel

Florida State University College of Law (Deceased)

Date Written: Feburary 3, 2009


Not long ago, Professor Cass Sunstein and his co-authors lamented that our legal culture lacks "a full normative account of the relationship between retributive goals and punitive damages." This Article offers that full normative account-through a theory of "retributive damages" as intermediate sanctions.

Under the retributive damages framework, when people defy legal obligations the state has imposed to protect the rights and interests of others, the state may either seek to punish them through traditional criminal law or make available the sanction of retributive damages, which would be credited against any further criminal sanctions imposed by the state for the same misconduct. Accompanied by an intermediate level of procedural safeguards, retributive damages statutes would empower private parties to act on behalf of the state to seek the imposition of what is in effect a civil fine determined largely by the reprehensibility of the defendant's misconduct. The base amount of the fine would assess a percentage of the defendant's wealth (or net value for entities) that increases with the reprehensibility of the defendant's misconduct, an assessment informed by guidelines and commentary provided by the state. The total retributive damages award should also include gain-stripping amounts, if any, in excess of compensatory damages, as well as lawyers' fees and a modest and fixed award for the plaintiff for bringing the matter to the public's attention. These payments (to the state, the plaintiff, and the lawyers) together constitute a sensible way to structure the aspect of extra-compensatory damages designed to advance the public's interest in retributive justice.

After offering some background on punitive damages and how retributive justice differs from other rationales for punitive damages (such as optimal deterrence or victim vindication), the Article describes the structure of retributive damages and clarifies the comparative advantages of retributive damages vis-a-vis other remedies and mechanisms. Finally, the Article defends the retributive damages framework against possible constitutional objections. Importantly, the account here not only answers Sunstein's challenge, but also promises to make sense of the Supreme Court's recent and somewhat puzzling holding in Philip Morris USA v. Williams, i.e., that juries may not calculate punitive damages by considering the amount of harm caused to nonparties to the litigation.

A draft of a companion article, How Should Punitive Damages Work? (forthcoming 157 U. Pa. L. Rev. 2009), which focuses on procedural safeguards and some implementation issues, can be found here:

Suggested Citation

Markel, Dan, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction (Feburary 3, 2009). Cornell Law Review, Vol. 94, pp. 239-340, 2009, Available at SSRN:

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

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