Legal Commentary

Hope everyone had a good weekend following the Wall Street crisis and the Noles game. I spent most of my time the last few days revising my draft of Retributive Damages, which I've just uploaded to SSRN over here. As I've mentioned before, this paper is the first in a series of three papers proposing a new way to think about punitive damages. The first one is coming out this January in Cornell Law Review, and the draft on SSRN reflects some of the edits I've received from the first round of editing there.  The sequel to that paper, How Should Punitive Damages Work?, is coming out later in the spring in the Penn L. Review. I'll be presenting the sequel paper this Friday afternoon at the Canadian Law and Economics Association in Toronto (and I hope local Prawfs readers will get in touch with me there; I'll be hanging out with Dave Hoffman and Erik Knutsen). With some luck, there will be some discussion of that sequel paper in Penn's excellent online companion, Pennumbra. (Please let me know if you're interested in participating.) In the next few months, I am also hoping to get the third part of the trilogy ready for the spring submission cycle, tentatively titled, Punitive Damages and Complex Litigation, and a book proposal unifying these ideas in a project called Fixing Punitive Damages.

I've also put up a lightly revised draft of Executing Retributivism, a paper I mentioned a few weeks ago about the implications of the Supreme Court's decision in Panetti v. Quarterman for Eighth Amendment review of cases involving both capital and non-capital punishments. I'm pleased to say that the piece will come out as an article in Northwestern U. Law Review in the late spring. In the next few months, I plan on growing the arguments in Part IV.A of the paper (about the implications of "negative retributivism" for non-capital punishment), which right now, are largely allusive in nature. I'll be presenting a version of this paper at Amherst College at an Austin Sarat-fest in a couple weeks and then revising it in light of comments around early to mid October. As a result, I'll be especially grateful for any comments that roll in prior to October 12. Also, Northwestern has an outstanding online companion, Colloquy, which sometimes publishes in both the print volume and online those responses to articles in the print volume. So if you're interested in participating in a Panetti-inspired forum, let me know.

Last, Ethan, Jennifer Collins and I are in the home stretch of getting our book manuscript together for Oxford University Press. The book is called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. If you have the time and inclination to read it in draft, we'd be very grateful for your comments; we'll probably have a draft to circulate in the next week or so. The book is scheduled to appear in the early spring of 2009, and draws on but revises much of the work we've done here (our Illinois piece) and here (our BU piece forthcoming this December). The BU piece, Punishing Family Status, is the subject of a mini-symposium with wonderful and provocative responses by Rick Hills and Michael O'Hear. Michael's response is available in draft here. Our draft reply, Voluntarism, Vulnerability and Criminal Law, is available here. Come 2009, keep your eyes open for a Privilege or Punish Roundtable coming to you. We'll have a great group of people to talk about the book and its themes at Law and Society in Denver (tentatively Naomi Cahn from GW, Elizabeth Scott from Columbia, and Melissa Murray from Boalt) and at SEALS in August (tentatively Alafair Burke from Hofstra, Jack Chin from Arizona, Alice Ristroph from Seton Hall, and Bob Weisberg from Stanford).