Retributive Damages in a World Without Trials

Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees.

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I.P. Licensing After Quanta Computer: A Podcast

My colleagues Nadelle Grossman and Kali Murray have recently prepared this informative podcast regarding the implications for I.P. licensing of the Supreme Court’s recent decision in Quanta Computer, Inc., v. LG Electronics, 128 S.Ct. 2109, 170 L.Ed. 2d 996, 76 USLW 4375 (June 9, 2008). I understand that this will be the first in an occasional series of podcasts on current issues in intellectual property prepared by Marquette’s I.P. professors. This is an exciting new venture, and I look forward to hearing their future productions.

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Desecrating a Sacred Mountain

The Ninth Circuit Court of Appeals, sitting en banc, recently decided an interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain considered sacred in their religion. Apparently, the government planned to use recycled wastewater, which contains 0.0001% human waste and would, in the view of some of the plaintiffs, desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.

The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentially, no such claim could be brought against neutral laws of general applicability under the Constitution’s Free Exercise Clause.

The Ninth Circuit (over three dissents) rejected the challenge. That doesn’t surprise me. Any rule that required accommodation of the plaintiffs’ claim here would likely result in religiously based gridlock on a host of policy questions. The outcome tracks an earlier Free Exercise decision. What interests me is the court’s reasoning.

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