Legal Commentary

I'm excited to say I've just begun my first semester of teaching leave. While I am excited to tackle some new projects now, I am also clearing some other ones off the decks. (And yes, I hope the leave facilitates some more substantive blogging too.)  In any event, for the benefit of my mom and a handful of other folks looking for something to read besides Amy Chua or Ethan Leib or Paul Horwitz's new books, I thought I'd let you know that there are new (and nearly final) versions of a couple pieces of mine up on SSRN and I just added a draft of a new piece.

The first new version is of my chapter, What Might Retributive Justice Be?, for the Retributivism volume edited by Mark D. White.  (I am hopeful that this volume gets the same publicity Mark was able to generate for his edited volume on procrastination--a review in the New Yorker!). As I alluded to when I put the draft up first, it is a relatively short overview of contemporary retributive justice theory (more specifically, the conception of that punishment theory that I favor). Thus, for those of you prawfs teaching criminal law to first year students this semester, and punishment theory this week or next, please feel free to circulate the draft or the link to your students who are still puzzled by the accounts of retributive justice offered up in their casebooks. 

The second piece I have revised, which is now up on SSRN, is entitled Overcoming Tradeoffs in the Taxation of Punitive Damages. This piece should be coming out in the next couple months and is a companion to a piece Gregg Polsky and I did last year entitled Taxing Punitive Damages.  Btw, Larry Zelenak of Duke wrote a super interesting reply to that piece, which you can see here; I suspect Gregg and I will write up a short reply in the near future. Anyhow, whereas the piece with Polsky made its recommendations regarding the taxation of punitive damages largely in response to the practice of punitive damages law currently governing in most American jurisdictions, the new companion piece is designed to advance the discussion of the normatively desirable tax treatment of punitive damages once punitive damages are properly disaggregated to serve the separate functions of cost internalization, victim vindication, and retributive justice.  In developing the normative policy recommendations, the new piece builds on the earlier work I've done regarding the reformation of punitive damages law.

Finally, and somewhat more exciting, Chad Flanders (SLU), David Gray (U. Maryland), and I have just uploaded a draft of a new piece of ours, coming out in April, which is entitled Beyond Experience: Getting Retributive Justice Right. It's an essay that continues and, for now, concludes our part in the conversation about the relevance of subjective experience, and in particular, hedonic adaptation, to retributive punishment. Although interest in subjective experience for purposes of punishment goes back at least as far as Bentham, this was a topic whose salience for retributive justice theory was most recently revivified in 2009 and 2010 by Adam Kolber; John Bronsteen, Chris Buccafusco, and Jonathan Masur (BBM); and, to some extent, my colleague Shawn Bayern. Chad and I wrote up an article (entitled Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice) trying to explain the wrong turns associated with such arguments. Separately, and roughly around the same time, David Gray wrote up his trenchant critique of Kolber and BBM (entitled Punishment as Suffering). BBM responded to our sallies in their recently published essay, Retribution and the Experience of Punishment. The piece I've just uploaded to SSRN, Beyond Experience: Getting Retributive Justice Right, is our attempt to deal with some of the new (and old) arguments and formulations advanced by BBM.  Doubtless, you're tempted to wade into this stunningly important debate yourself :-), but if you've been overcome by other obligations, here's the punchline of our piece: we're still not persuaded that hedonic adaptation is of any substantial significance to punishment theory or policy guided by retributive principles worthy of adhering to.