In
Aggravating Punitive Damages, Professor David Owen applauds much
of Professor Markel’s vision of how punitive damages law should operate,
such as using a “clear and convincing” standard of proof for this
quasi-criminal remedy. While acknowledging that Markel’s public
law insights illuminate a host of perplexities, including many nettlesome
issues under the due process umbrella that now cabins punitive damage
awards, Owen questions Markel’s bold proposal to redirect the retributive
focus of this hybrid remedy away from victims of aggravated wrongdoing
to the public at large—such as shifting retributive damage awards
from victims to the public. Owen argues that, most fundamentally,
punitive damages are best viewed as a form of robust, retributive restitution
for victims of flagrant wrongdoing and that this peculiar remedy should
remain firmly rooted where it began and presently resides—in private
law.
Volume 158 Issue 1 2010 Response