The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good

Florida Law Review, Dec 2011

It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple punishments problem. As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that “most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years” has been the Court’s punitive damages jurisprudence. This “innovation” has been accomplished through an unusual coalition of liberal and conservative Justices in the various closely divided decisions along the way. With the addition of four new Justices since the last case the Court decided on substantive due process grounds -two appointed by President George W. Bush and two appointed by President Barack Obama-it is unsurprising that many Court followers claim that the status of punitive damages jurisprudence is “unstable and uncertain” and that what will happen in the future is “impossible to tell.” As demonstrated in this Article, however, precisely the opposite is true. Contrary to outward appearances, a careful review of the Court’s most recent activity in this area-Philip Morris USA v. Williams -reveals that the Court is almost certainly entering an extended silent phase in its punitive damages jurisprudence and will not be reviewing any more punitive damages awards in the foreseeable future. The Court’s recent foray into punitive damages has, however, left the dissenting Justices and punitive damages scholars complaining that the Court’s jurisprudence is “insusceptible of principled application.” While Philip Morris made some progress toward clarifying much of the lingering ambiguity, it still left ample room for continued criticism of whether the approach it has adopted is principled. Along the way, however, the Court did make significant progress toward addressing its primary animating concern with punitive damages-the multiple punishments problem. Simply stated, this problem occurs when “a defendant, who has injured multiple potential plaintiffs by a single act or course of conduct, faces multiple punitive damages awards for that conduct.” While this persistent problem would be best remedied by Congress, the Court’s attempts at a fix have led to awkward and highly questionable opinions that expose the Court to increasing criticism that its punitive damages jurisprudence consists of nothing more than results-oriented, substantive

Article PDF cannot be displayed. You can download it here:

https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1107&context=flr

The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good

Florida Law Review Volume 63 | Issue 3 Article 2 2-15-2013 The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good Jim Gash Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Civil Procedure Commons, Constitutional Law Commons, Courts Commons, Jurisprudence Commons, Legislation Commons, and the Torts Commons Recommended Citation Jim Gash, The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good, 63 Fla. L. Rev. 525 (2011). Available at: http://scholarship.law.ufl.edu/flr/vol63/iss3/2 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact . Gash: The End Of An Era: The Supreme Court (Finally) Butts Out of Punit THE END OF AN ERA: THE SUPREME COURT (FINALLY) BUTTS OUT OF PUNITIVE DAMAGES FOR GOOD Jim Gash* INTRODUCTION ...................................................................................... 526 I. CONSTITUTIONALIZING PUNITIVE DAMAGES ................................... 531 A. The Excessive Fines Clause Does Not Apply to Punitive Damages ................................................................ 532 B. Procedural Due Process Places Constitutional Limits on Punitive Damages Awards ....................................................... 533 1. Pacific Mutual Life Insurance Co. v. Haslip ..................... 533 2. Honda Motor Co. v. Oberg ................................................ 535 C. Substantive Due Process Mandates that Punitive Damages Awards Not Be Grossly Excessive ........................... 535 1. TXO Production Corp. v. Alliance Resources Corp. ......... 535 2. BMW of North America, Inc. v. Gore................................. 538 a. Establishment of Guideposts........................................ 541 i. Degree of Reprehensibility ...................................... 541 ii. Ratio ........................................................................ 542 iii. Other Sanctions ....................................................... 542 b. Analysis of Guideposts ................................................ 543 3. State Farm Mutual Automobile Insurance Co. v. Campbell ........................................................................ 545 II. THE MULTIPLE PUNISHMENTS PROBLEM ......................................... 551 III. PHILIP MORRIS USA V. WILLIAMS..................................................... 555 A. Factual and Procedural History .............................................. 556 B. Before the United States Supreme Court ................................. 561 1. The Briefs ........................................................................... 563 a. Petition for Certiorari ................................................... 563 b. Briefs on the Merits...................................................... 566 2. The Majority Opinion ........................................................ 568 3. The Dissents ....................................................................... 571 C. Oregon Supreme Court Opinion on Remand ........................... 573 D. Certiorari Dismissed as “Improvidently Granted” ................. 574 E. A Concurrent Grant of Certiorari: Exxon Shipping Co. v. Baker ............................................................................. 575 IV. DECONSTRUCTING AND RECONSTRUCTING: WHAT IS THE STATE OF SUBSTANTIVE DUE PROCESS REVIEW OF PUNITIVE DAMAGES, AND WHERE WILL THE COURT GO NEXT? ....................................... 578 A. Procedural v. Substantive Due Process ................................... 578 * Associate Professor, Pepperdine University School of Law. I would like to thank my research assistant Al Sturgeon for his excellent assistance on this Article. I am also grateful to Pepperdine University School of Law for funding this Article through a summer research grant. 525 Published by UF Law Scholarship Repository, 2011 1 Florida Law Review, Vol. 63, Iss. 3 [2011], Art. 2 526 FLORIDA LAW REVIEW [Vol. 63 1. Substantive Due Process Was Simply Not Implicated and Is Alive and Well......................................................... 580 2. Substantive Due Process Review of Punitive Damages Is Dead ............................................................................... 581 3. The Court Has Said All It Cares To Say About Substantive Due Process .................................................... 584 B. Solving the Multiple Punishments Problem ............................. 589 C. The Balance of Power on the Court ......................................... 591 1. Chief Justice Roberts and Justice Alito ............................. 592 2. Justice Sotomayor .............................................................. 593 3. Justice Kagan ..................................................................... 595 CONCLUSION ......................................................................................... 596 INTRODUCTION It is finally over. The Supreme Court‘s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretoforeintractable multiple punishments problem.1 As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that ―most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years‖ has been the Court‘s punitive damages jurisprudence.2 This ―innovation‖ has been accomplished through an unusual coalition of liberal and conservative Justices in the various closely divided decisions along the way.3 With the addition of four new Justices since the last case the Court decided on substantive due process grounds4—two appointed by President George W. Bush and two appointed by President Barack Obama—it is unsurprising that many Court followers claim that the status of punitive damages jurisprudence is ―unstable and uncertain‖ and that what will happen in the future is ―impossible to tell.‖5 As demonstrated in 1. See, e.g., David G. Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 VILL. L. REV. 363, 406 (1994) (referring to the multiple punishments problem as ―the most momentous question as yet unresolved by the Court‖); see also infra note 218. 2. Pamela S. Karlan, Some Thoughts on Autonomy and Equality in Relation to Ruth Bader Ginsburg, 70 OHIO ST. L.J. 1085, 1087 (2009). 3. In fact, of the five current members of the Court who participated in the last case purportedly decided on substantive due process grounds, State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 4 (...truncated)


This is a preview of a remote PDF: https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1107&context=flr
Article home page: https://scholarship.law.ufl.edu/flr/vol63/iss3/2

Jim Gash. The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good, Florida Law Review, 2011, pp. 525, Volume 63, Issue 3,