In this Article, the Author discusses the implications of the Supreme Court's recent decision in Exxon Shipping Co. v. Baker for the Court's ongoing punitive damages jurisprudence, as well as for the Constitution's regulation of punishment more generally. The Exxon decision repeals that, notwithstanding modern rhetoric decrying supposedly "skyrocketing" punitive damages awards, the Court is troubled by the common law system of awarding punitive damages not so much because of the size of awards it allows as because of such awards' perceived unpredictability. From this insight, the Author argues that the Court's concerns about large punitive damage awards are therefore essentially procedural, not substantive, in nature. That is, the Court's current concerns over punitive damages mirror criticisms levied a generation ago against systems of criminal sentencing that generated vast and unjustified disparities in punishment. The constitutional imperative, now as then, is to regularize punishment. But that is all, the Author contends, that the Constitution really requires: once legislatures step into the breach and set to regulating punitive damages, the Court should defer to legislatures' policy goals and chosen means of effectuating them. In particular, if a legislature decides to give its democratic imprimatur to large punitive awards, the Court should accede to such determinations in the same way it regularly accedes to legislative determinations dictating exceptionally severe criminal punishment.
- Punitive damages,
- Due Process Clause,
- disparities in punishment
Available at: http://works.bepress.com/jeffrey_fisher/4/