Dan Markel's research while affiliated with Florida State University and other places

Publications (36)

Article
Professors Josh Bowers, Michael Cahill, and Antony Duff have each penned subtle and thoughtful response essays to my article, Retributive Justice and the Demands of Democratic Citizenship (available at http://ssrn.com/abstract=1930443).In this essay, I try to offer some initial thoughts that I hope will adequately address their separate challenges...
Article
This article reveals and responds to the democracy deficit in certain retributivist approaches to criminal law. Democracy deficits arise when we insufficiently recognize the moral authority of liberal democracies to create new moral obligations for us as individuals. Specifically, I will argue, in contrast to the claims of some leading criminal law...
Article
In our recent article, Taxing Punitive Damages, available at http://ssrn.com/abstract=1421879, we argued (1) that plaintiffs in punitive damages cases should be allowed to introduce to the jury evidence regarding the deductibility of those damages by defendants, and (2) that this jury tax-awareness approach is better than the Obama Administration’s...
Article
As explained in a companion piece (Taxing Punitive Damages, co-authored with Gregg Polsky, available at http://ssrn.com/abstract=1421879), there is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, business defendants are not always punishe...
Article
This brief invited essay appears in a symposium devoted to honoring my former boss, Judge Michael Daly Hawkins, as he transitions to senior status on the Ninth Circuit. In the essay, I draw attention to a distinction that appears with some frequency in the tissue connecting punishment theory to policymaking. The distinction is the difference betwee...
Article
There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the "Confrontational Conception of Retributivism," or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that "state" punishment...
Article
How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inc...
Article
In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diach...
Article
There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a r...
Article
In this brief essay, I try to draw some connections between the Supreme Court’s recent decision in Graham v. Florida and its reasoning in a significant but not yet sufficiently appreciated 2007 decision in Panetti v. Quarterman. Specifically, I will argue that the outcome in Graham coheres startlingly well with the reasoning in Panetti, a case proh...
Article
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series...
Article
This essay is a reply to two recent responses that appeared in the U. Penn Law Review's online companion, PENNumbra by Professors Michael Krauss and David Owen. The essay's principal goal is to clarify some areas where I think Professors Krauss and Owen misunderstood some aspects of my proposed framework for restructuring punitive damages, a framew...
Article
Last year, we published a book entitled Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009). Recently, the New Criminal Law Review published a series of provocative and challenging reviews of this book by Professors Doug Berman, Naomi Cahn, and Jack Chin. Needless to say, we appreciate their very kind words about ou...
Article
This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled 'Privilege or Punish: Criminal Justice and the Challenge of Family Ties' (Oxford 2009). You can download the entire book for free at...
Article
In Panetti v. Quarterman, a 2007 Supreme Court case about the standard of mental competence required for execution, the Court demanded that the defendant must rationally understand why he is being killed. Although the Court's explanation for this new "rational understanding" requirement was somewhat inchoate, this Article argues that the new requir...
Article
In the majority of states indeterminate sentencing schemes prevail -- under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge. Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentenc...
Article
This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discriminatio...
Article
What are punitive damages for? In a companion article,* I argued that states should re-conceive and restructure punitive damages to advance, in part, the public's interest in retributive justice. I called such damages "retributive damages." Although that article provided the rationale and basic structure for retributive damages as an expressly "int...
Article
This Response addresses the criticisms of our project by Professors Rick Hills and Michael O'Hear. Before we address those challenges, we first want to reiterate our gratitude to the B.U. Law Review for hosting an exchange based on our article, Punishing Family Status (forthcoming BU LR, December 2008), and to Professors Hills and O'Hear for their...
Article
This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of "family tie...
Article
Not long ago, Professor Cass Sunstein and his co-authors lamented that our legal culture lacks "a full normative account of the relationship between retributive goals and punitive damages." This Article offers that full normative account-through a theory of "retributive damages" as intermediate sanctions. Under the retributive damages framework, wh...
Article
In past work I have explained why we should pursue alternatives to incarceration that resist the seduction of public shaming. Building on that work, this Article identifies some "wrong turns " on the road to alternative sanctions. Specifically, this Article finds and explores three difficulties with Yale Law School Professor Dan Kahan's recent arti...
Article
This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwiths...
Article
This essay raises questions about the appropriate way for states to construe the criminal history of offenders migrating across states. In a recent article, Professor Wayne Logan asked two important questions that have been given spare and insufficient attention. The first focuses on how states construct the criminal histories of the offenders who...
Article
In the aftermath of Governor Ryan's decision to commute the sentences of each offender on Illinois' death row, various scholars have claimed that Ryan's action was cruel, callous, a grave injustice, and, from a retributivist perspective, an unmitigated moral disaster. This Article contests that position, showing not only why a commutation of death...
Article
This article provides a framework for addressing concerns about retributive justice in states recovering from national traumas and it uses South Africa's Truth and Reconciliation Commission (TRC) as its focal point. The article begins by providing an overview of the origins and operations of the TRC, and then explores several conceptual and legal c...
Article
Since the appearance nearly ten years ago of Professor Toni Massaro's critique of the feasibility of shaming punishments in America, scholars have heatedly debated the practicality of and justifications for a variety of alternatives to incarceration in publicly managed prisons. A popular assumption on both sides of the debate over alternative sanct...
Article
Surprisingly, current intellectual property law protects materials that are criminally prohibited or were made as a result of illegal criminal actions. Thus, a filmmaker may commit or induce various illegal acts, record them, and receive and enforce a copyright on the depictions, just as a corporation may patent drugs developed with stolen material...
Article
The standard trope in the literature on retributive theory is that mercy serves as an unwelcome interruption of the narrative between crime and punishment. Underlying this theme is the purportedly retributivist notion that the criminal law and its institutions should impose some form of divine or poetic justice for wrongdoing of all different kinds...
Article
Right now, this abstract is a placeholder for a paper I am developing that examines the normative conundra associated with how the passage of time affects the institutional imposition and distribution of punishment in criminal law and procedure. Specifically, I explore what principles have been articulated by courts and other political actors to ju...

Citations

... To many, this threatens to incrementally push society toward non-democratic lawlessness. 166 ...
... The current work used the criminal legal system as an example domain in which to investigate children's and adults' views about punishment. Some scholars working in the legal tradition conceptualize punishment as "expressive," i.e., as both an action and a mechanism for social messaging (e.g., Duff, 2011;Feinberg, 1965;Kahan, 1996;Markel, 2011;Murphy & Hampton, 1988). For instance, scholars have argued that punishment expresses information about community norms (Duff, 2011;Markel, 2011) or social hierarchies (i.e., the social standing of victims relative to transgressors, Murphy & Hampton, 1988). ...
... Secondly, from a deterrence perspective, the optimal level of a sanction depends on the potential criminal's disutility of that sanction; a constant nominal punishment would lead to ineffective underdeterrence, or costly overdeterrence depending on the individual. On the other hand there are theories of punishment which do not equate punishment with suffering (Gray 2010), notwithstanding the view that assigning different levels punishments to different people for an identical offense is ethically unacceptable, violating the principle of equality before the law (Markel and Flanders 2010). Indeed, the United States Sentencing Guidelines Manual discourages judges from callibrating sentences based on convicts subjective experience (Kolber 2009b). ...
... Denunciation theory has also been justified on nonconsequentialist grounds-as something that is the right thing to do even if it has no demonstrable beneficial effects(von Hirsch 1976(von Hirsch , 1985(von Hirsch , 1993Duff 1986Duff , 2001Kleinig 1998;Markel 2009). Whether consequentialist or not, most versions of the theory see it as a positive goal and justification for punishment. ...
... They argue that online public shaming is an "ethically challenging product" of social media and digital technology and is morally wrong because it lacks due process and does not give fundamental respect to subjects as human beings. In discussing what justifies punishment and how offenders are punished, Markel (2001) also argues that shaming punishments are inconsistent with retribution. However, regarding whether nudges undermine human agency, Sunstein (2015) suggests that appropriate nudges promote human agency and consumer freedom. ...
... 157 While there are multiple definitions, Dan Markel's description of mercy as`the remission of a deserved punishment in part or in whole' will suffice for current purposes. 158 As noted above, much of the literature on the topic begins with the premise that mercy is closely associated with notions of state sovereignty and the exercise of state power. Schmitt, for example, refers explicitly to pardons and amnesties as examples of the`omnipotence of the modern law giver'. ...
Citing article
... It is also sometimes argued that amnesty granted by the South African TRC entailed no sacrifice of retributive justice, either because conditional amnesty was what its recipients deserved or because it was the best way in the circumstances of satisfying to the greatest degree possible the claims of retributive justice. See Markel (1999), and Allais 2011), respectively. I have rebutted these arguments elsewhere. ...
... For a liberalism-based case against shaming sanctions, see Flanders (2006) and Nussbaum (2006, 227-278). For an argument against the death penalty because of its incompatibility with human dignity, see also Markel (2005). dimension. ...
... 32 On the procreative-norm see . We choose this term rather than 'repronormativity', as used, for example, by Collins, Leib and Markel (2008), in recognition of the feminist claim that the 'reproduction' of life extends far beyond the conceiving and bearing of children, which is the focus of what we call the procreative-norm. 33 We prefer the broader term 'couple-norm', which we have formulated through this body of research, to the concept of 'mononormativity' (Pieper and Bauer, 2006;Wilkinson, 2010), which focuses attention on one facet of the couple-norm -the injunction of monogamy. ...
... Ook in de literatuur wordt vaak gesteld dat enkel bij ouders die caregiving verantwoordelijkheden dragen, rekening gehouden zou mogen worden met de impact op de kinderen bij de straftoemeting. Een andere benadering zou de doelstelling voorbijstreven, namelijk het beschermen van de belangen van de kinderen, en zou ertoe leiden dat personen hun juridische status als ouder zouden misbruiken (Markel et al., 2009;Lerer, 2013). In Zuid-Afrika werd het toepassingsgebied bovendien nog verder beperkt: rechtbanken zijn enkel verplicht om de belangen van het kind te overwegen bij sole caregivers. ...