No aspect of civil law aggravates defendants more, it seems, than punitive damages. Straddling the civil and criminal law, punitive damages are awarded to a plaintiff in a private lawsuit, though they are widely viewed as noncompensatory and in the nature of a penal fine. Because such damages are assessed in civil lawsuits, the procedural safeguards of the criminal law—such as the “beyond a reasonable doubt” burden of proof, the privilege against self-incrimination, and the prohibitions against double jeopardy—generally do not apply. This strange mixture of criminal and civil law objectives and effects has always drawn controversy to this peculiar remedy, like a moth to flame.

The clash of views is colorfully portrayed by early state supreme court decisions. One court remarked, “The idea is wrong. It is a monstrous heresy. It is an unsightly and an unhealthy excrescence, deforming the symmetry of the body of law.” Yet, another court characterized punitive damages law as “an outgrowth of the English love of liberty regulated by law” that “restrains the strong, influential, and unscrupulous, vindicates the right of the weak, and encourages recourse to, and confidence in, the courts of law by those wronged or oppressed by acts or practices not cognizable in, or not sufficiently punished, by the criminal law.” Its grounding in essential justice, its drawing from diverse ancient legal cultures, and its deep roots in early English law all suggest that the punitive damages remedy is strong enough to endure the onslaught of recurring challenges to this hybrid creation of the law.

Yet, over the last two decades, the legitimacy, scope, and administration of punitive damages have been rigorously tested under the Constitution in a series of cases in the Supreme Court. These cases have formed a growing body of jurisprudence that has spawned a spate of scholarship on how punitive damages should be conceived and administered. Into this maelstrom of clashing views has plunged an important new commentator, Dan Markel, who offers novel insights and proposals in a remarkable body of scholarship still in progress: to date, this includes Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction and How Should Punitive Damages Work?

This Response focuses on the latter work and critiques its premise, which was developed in the former, that public retribution should play a major role in punitive damages. I offer an alternative view—that private law should hold tight to the punitive damages remedy, a device that, through the institution of private retribution, offers victims of aggravated wrongdoing robust redress for the panoply of losses aggravated by the flagrancy of a wrong. In addition, I briefly examine a couple of Professor Markel’s treatments of how punitive damages should work, including the standard of proof and whether insurance against punitive damages should be allowed. Though we differ mightily on whether punitive damages should be directed principally to achieve public retribution or private justice, I applaud his focus on punitive damages’ inherent pluralism and his close analysis of the appropriate levels of procedural safeguards to keep this remedy from bursting its proper bounds. Finally, I conclude that Professor Markel’s extensive and creative scholarship on punitive damages helpfully pushes observers of this strange remedy to reconsider their most fundamental thoughts about how it should ideally be configured.