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Unpublished Paper
ExpressO (2009)
  • Dan Markel, Florida State University

Not long ago, Professor Cass Sunstein 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.”

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. Retributive damages statutes would empower private parties to act on behalf of the state to seek the imposition of what is in effect a 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 together (to the state, the plaintiff, and the lawyer) constitute the best way to structure punitive damages to advance the goals of 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-à-vis other remedies and mechanisms. Finally, the Article defends the retributive damages framework against possible constitutional objections. Importantly, the account here not only answers Professor Sunstein’s challenge, but also promises to makes 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 strangers to the litigation.

  • punitive damages,
  • retributive justice,
  • intermediate sanctions
Publication Date
January, 2009
Citation Information
Dan Markel. "RETRIBUTIVE DAMAGES" ExpressO (2009)
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