August 28, 2008

Forthcoming Law Review Article: "How Should Punitive Damages Work?"

Professor Dan Markel of Florida State University College of Law has posted on SSRN a draft of his forthcoming law review article "How Should Punitive Damages Work?" As he describes in his post on Prawfsblog, the article is part of a three-part series that he intends to assemble into a book, tentatively titled "The Punitive Damages Mess: How to Fix It."

In this installment, he explains that there are three main goals of punitive damages: (1) to vindicate a public interest in retribution (which he calls "retributive damages"), (2) to vindicate a plaintiff's private interest in redress for harms to his/her dignity (which he calls "aggravated damages"), and (3) to provide cost-internalization of harmful conduct ("deterrence damages"). He suggests that it's a mistake to include all these different concepts under the umbrella of punitive damages. He says each form of damages should be assessed separately, with defendants enjoying different procedural protections depending on the type of damages at issue. It's an intriguing idea, but unfortunately we aren't likely to see that level of sophistication from actual policy makers anytime soon.