Brief Demise of Remittitur: The Role of Judges in Shaping Remedies Law

Sarah M. R. Cravens, University of Akron School of Law

Abstract

Among the underrated remedies decisions discussed in this Symposium, there is a particular episode in Missouri that highlights the tension between the judiciary and the legislature in shaping remedies law. In two 1985 companion cases, the Missouri Supreme Court eliminated remittitur as a common law remedy in the state, finding inconsistency and abuse in the doctrine’s application by trial judges. Just two years later, however, the Missouri legislature reinstated remittitur as a remedy by statute—without addressing any of the concerns raised by the state’s supreme court. Given the criticism of the court’s action as unwarranted activism, the legislature’s failure to address the court’s reasoning is particularly ironic since the court was actively limiting its own authority. In analyzing the arguments of the Missouri Supreme Court against remittitur and the legislature’s failure to address them, this Article attempts to highlight some of the tensions between the legislative and judicial branches inherent to the creation of judicial procedure, as well as to shed light on this previously overlooked episode in remedies law.