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.

I admire Dan’s project for its ambitiousness and theoretical elegance. Still, I wonder if it is possible to impose the sort of rational order on civil litigation outcomes that Dan wants to achieve in a world in which nearly all cases settle. The natural tendency of plaintiffs’ lawyers will be to bargain for high compensatory damages and low retributive damages (since the state gets to keep the latter, but not the former). Dan would address this problem by requiring settlements to be submitted to the state attorney general for review; the AG would supposedly ensure adequate retribution. Yet, in a case that has not gone to trial (and in which there may not even have been any discovery), how is the AG to have enough information to judge whether the retribution is adequate? If we imagine the AG’s office hiring a bunch of new lawyers and investigators to look into proposed settlements, then Dan’s system may start to get unacceptably expensive. Rather than funding a new bureaucracy to review civil settlements, perhaps it would be better to put the money into more police and prosecutors so that more cases can be processed through the conventional criminal justice system, which is where we traditionally expect the state’s interests in retribution to be vindicated.

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