Redstate

They've opposed Federally mandated caps on damages enacted under State law, believing that the levying of those damages lies within the plenary authority of the States under the Constitution. :)

(Sorry for the pedantry, but while I disagree with the result, I love reading Campbell.)

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Even those who learn from history are surrounded by those doomed to repeat it.

That's right. As Justice Thomas wrote in his dissent today:

I join JUSTICE GINSBURG’s dissent in full. I write separately to reiterate my view that "the Constitution does not constrain the size of punitive damages awards." . . . . It matters not that the Court styles today’s holding as “procedural” be-cause the “procedural” rule is simply a confusing imple-mentation of the substantive due process regime this Court has created for punitive damages. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 26–27 (1991) (SCALIA, J., concurring in judgment) (“In 1868 . . . punitive dam-ages were undoubtedly an established part of the American common law of torts. It is . . . clear that no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of such damages, or theiramount”). Today’s opinion proves once again that thisCourt’s punitive damages jurisprudence is “insusceptible of principled application.

It comes down to whether you believe in substantive due process or not. Thomas and Scalia rightly do not. It is the legislature's job to place caps on noneconomic damage awards. Stevens and Ginsburg do believe in substantive due process, but they also believe in the little guy over the big guy.

When this case was argued, I wrote that how Alito and Roberts came out on this case would tell us a little bit on how they might rule in a revisit of Roe v. Wade. I'm very disappointed that they were not with Thomas and Scalia here.

I'm not a fan of substantive due process by any stretch. But I'm not sure this line of cases is properly shoehorned into the sdp caselist. At a minimum, the due process clause protects against deprivations of life, liberty, and property as a result of arbitrary state procedures. This line of authority is just a recognition that there is a point where the punitive aspects of puni damages that bear absolutely no resemblence to the actual compensatory damages become such arbitrary deprivations of property. There is no heightened scrutiny of undefined liberty interests, penumbras, or any such, just an examination of the procedure the state uses to deprive someone of property.

I also don't find it particularly relevant that punis were available at common law. No one disputes that punis are sometimes allowed, just that they have to bear some resemblence to the compensatory damages. The question is whether, at common law, juries were awarding $2M in punitive damages on a $2000 fraud claim regarding a paint job on a car. I doubt it.

Its rare that I disagree with Scalia/Thomas, but this is one where I at least see the powerful counterargument.

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I think that the same kind of thinking that informs "substantive" due process is underfoot here; but I agree that the shoehorning doesn't work well. I add, however, that (1) the idea that there is some Federal constitutional maximum to how a State may punish corporations within its boundaries for acts within its boundaries is obscene; and (2) I have no idea -- and this is what I do for a living -- why, as a matter of philosophy, the punitives must be tied to the compensatories, except that it's what's easiest for the mind to grasp when dealing with these things.

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Even those who learn from history are surrounded by those doomed to repeat it.

I think that the same kind of thinking that informs "substantive" due process is underfoot here; but I agree that the shoehorning doesn't work well

Can you please explain the line after the semicolon, given what you said before the semicolon? Why doesn't shoehorning work well?

"the idea that there is some Federal constitutional maximum to how a State may punish corporations within its boundaries for acts within its boundaries is obscene"

I rarely disagree with you, but I do here. The 14th Amendment almost certainly places limits on how corporations may be punished, just as much as it places limits on how people may be punished (unless your argument is that Santa Clara County v. Southern Pacific Railroad Company should be overruled and a corporation should not be considered a "person;" I did not understand your argument as such). At any rate, I'm not sure the BMW v. GOre line of cases stands for the proposition that there's a maximum that a state can punish a company. I think implied here is that the mechanism for levelling what is, in effect, a massive fine against a corporation, cannot be 12 average people who've just been inflamed by plaintiff's testimony, and who are operating under a "preponderance of the evidence" standard (or "clear and convincing" in some jurisdictions). As an aside, this is why I distinguish the thinking from most sdp cases, because this line does focus upon the process causing the deprivation, rather than the substance of the deprivation.

"have no idea -- and this is what I do for a living -- why, as a matter of philosophy, the punitives must be tied to the compensatories, except that it's what's easiest for the mind to grasp when dealing with these things."

This is where you get the most Roe-like result -- this could probably be analogized to the trimester framework. But my problem with Roe isn't so much with the trimester framework, it is that the underlying right only arises if you engage in contortions that belong in circue de soleil.

It may well be that the basic rule should be that punitive damages are too large and become quasi-criminal at a certain point, period. Tying it to compensatories just gives an easy frame of reference (as you point out). I think it also adds to the notion that, okay, really bad acts that cause a lot of damage might rationally warrant big punitives that might not be arbitrary. But when you have something like BMW v. Gore, with millions of dollars in punitives assessed against a company for a $2000 warranty claim (because, as you know, the size of the company is a large factor in assessing punis), represents a wholly arbitrary windfall for the Plaintiff that has nothing to do with the harm involved in the case (ie what the civil justice system is supposed to do). I have to admit, there's something that just SOUNDS right about this, even if I can't quite enunciate it. But the specific form of hte remedy makes less sense than the basic proposition that punitive damages, at a certain point, become arbitrary deprivations of property.

Another way I like to look at it is this: To my mind, there is no doubt that if a jury awarded the entire value of a company as punis, that would be a taking for private use (which is universally understood as violating the due process clause, at least pre-Kelo). I wouldn't really consider the analysis much changed at 99.9% of the company's value.

http://www.myelectionanalysis.com

But when you have something like BMW v. Gore, with millions of dollars in punitives assessed against a company for a $2000 warranty claim (because, as you know, the size of the company is a large factor in assessing punis), represents a wholly arbitrary windfall for the Plaintiff that has nothing to do with the harm involved in the case (ie what the civil justice system is supposed to do). I have to admit, there's something that just SOUNDS right about this, even if I can't quite enunciate it. But the specific form of hte remedy makes less sense than the basic proposition that punitive damages, at a certain point, become arbitrary deprivations of property.

It seems to me the problem is with the whole system of punitive damages. If a person or corporation needs to be punished (or dissuaded from doing something bad again), that should be handled on the criminal side, with its additional protections, much higher burden of proof, and punishments that are laid out in advance by the legislature, rather than simply left to the whim of 12 random citizens.

I think the whole system is an affront to justice.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

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"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

Punis were developed before there was a modern regulatory state. That state does remove a lot of the need. And if you think about it, there's no reason that a plaintiff should get the windfall of a massive punitive judgment simply because they happen to get injured by a large corporation.

http://www.myelectionanalysis.com

So if the regulatory scheme fails for any number of reasons, why should a corporation be able to profit from acts that would otherwise support a punitive damage claim? As I understand it, our legal system is designed to favor plaintiffs. Maybe it's due for some changes, but it's going to take quite a force to make that happen.

A plastic bag with the words "This is not a toy" on it ?
Own a car with a gps ? Notice it doesn't just come on in map mode ?
What is the primary use of the americans with disabilities act ?

______________________________
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777

But if you mean that punitives can't be justified where there is proper warning, I'd agree completely. I guess I'm a "smoking nazi" because I don't like to be around it, but I don't agree with punitives damages in these cases because anyone who believed the nonsense put out there by cigarette companies deserves their injury. People need to be at least somewhat responsible for their own actions.

But maybe you had another point and I just need a second cup of coffee to figure it out.

But the main one is conceptual. The corporation doesn't profit, because it has to pay compensatory damages. Punitives are entirely punishment, ie to put the corporation in an even worse position than it was beforehand.

http://www.myelectionanalysis.com

Compensatory damages make that one plaintiff whole. Punitives are the "newspaper on the nose" to teach the corporation not to continue to engage in that behavior, which could result in more harm to more people. Take away the ability to punish a corporation, and it may decide that it is profitable to continue the bad behavior. Cigarette companies, assuming for a moment the truth of allegations about their knowledge of addiction, etc., are a great example because it takes a long time for their "victims" to be injured, and they may die or suffer injury from many other causes, which means they may never sue for compensatory damages.

To my mind, there is no doubt that if a jury awarded the entire value of a company as punis, that would be a taking for private use (which is universally understood as violating the due process clause, at least pre-Kelo).

Is that "universally understood" part true? I'd love to see a citation on that. As long as there are appropriate procedures in place, how would it violate the due process clause?

If a company did something harmful to one plaintiff, and the state had in place (the civil jury system) a mechanism for a jury, after a trial, to award punitive damages to that plaintiff in order to punish that bad conduct, and the company chose to do business in that state anyway, the company has been afforded due process. Perhaps the legislature should be fired for allowing such a substantive result, but there is nothing unconstitutional about the matter.

Yeah, that is pretty much universally understood as a due process violation. That's the whole controversy in Kelo -- they held a transfer to a landowner to be a "public use," and hence SCOTUS considered it under the takings clause rather than the 14th Amend, and only just compensation was required.

"If a company did something harmful to one plaintiff, and the state had in place (the civil jury system) a mechanism for a jury, after a trial, to award punitive damages to that plaintiff in order to punish that bad conduct, and the company chose to do business in that state anyway, the company has been afforded due process. Perhaps the legislature should be fired for allowing such a substantive result, but there is nothing unconstitutional about the matter."

Huh? I don't doubt that you can serve them with process (part of due process) under these facts, but choosing to live in a state doesn't inherently open you up to any mechanism the justice system puts in place. The due process clause isn't as full of hidden meanings as many would argue, but it is richer than this.

But you hit on why this isn't substantive due process. What is questioned here is the mechanism, eg the procedure, being used to deprive someone of property. Most would agree, for example, imposing a criminal penalty under a preponderance of the evidence standard rather than under a reasonable doubt standard would violate due process. Its the same analysis here. Imposing a massive fine on a company for relatively minor violations is a wholly arbitrary deprivation, especially under the lower standard and without the protections you normally would get with such a huge punishment from the state.

http://www.myelectionanalysis.com

Yeah, that is pretty much universally understood as a due process violation. That's the whole controversy in Kelo -- they held a transfer to a landowner to be a "public use," and hence SCOTUS considered it under the takings clause rather than the 14th Amend, and only just compensation was required.

Kelo never had nothing to do with the due process clause. In actuality, a government taking for "private use" has forever been understood as either outside the bounds of government power or as an express violation of the takings clause (the reasoning being that the takings clause, by allowing takings for "public use," necessarily prohibits takings for private use). See Justice Thomas's dissent in Kelo.

Imposing a massive fine on a company for relatively minor violations is a wholly arbitrary deprivation

Your "wholly arbitrary deprivation" standard is substantive in nature.

especially under the lower standard and without the protections you normally would get with such a huge punishment from the state

This is an argument about procedure. But you need to go a step further. You need to be able to argue that the drafters of the 14th Amendment understood jury discretion to punish civil defendants to be subject to certain minimum standards that have been violated here. I don't think you can do that. As Justice Scalia has written, "In 1868 … punitive damages were undoubtedly an established part of the American common law of torts. It is … clear that no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of such damages, or their amount."

Obviously, I meant to write, "Kelo never had anything to do with the due process clause"

For once, reading his personal preferences into the U.S. Reporter yields a good result.

http://www.myelectionanalysis.com