Jill Wieber Lens, ‘Procedural Due Process and Predictable Punitive Damage Awards’

In Exxon Shipping Co. v Baker, the Supreme Court’s most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their “stark unpredictability.” To fix this real problem, the Court abandoned all hope that common law jury instructions can produce predictable punitive awards. Instead, the Court suggested pegging the punitive damage award to the compensatory damage award. Analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding.

Exxon should not be overlooked, however, as it signals a resurgence of procedural due process, a basis of challenging punitive damage awards that the Court has not heard since the early 1990s. Predictability of the amount is no different than notice of the likely severity. If common law jury instructions cannot produce predictable punitive damage awards, they also cannot produce awards at a level of severity of which a defendant has fair notice. Unfortunately, the Court’s Exxon pegging solution to achieve predictability (i.e., awards at a severity level of which a defendant has fair notice) will be unsuccessful because of its reliance on compensatory damages, which are inherently unpredictable. As an alternative, this Article suggests looking to restitution, a non-controversial punitive, civil remedy. Similarly basing punitive damages on the defendant’s gain would produce predictable awards – as procedural due process requires.

Lens, Jill Wieber, Procedural Due Process and Predictable Punitive Damage Awards (August 2, 2011). Brigham Young University Law Review, Forthcoming.

First posted 2011-09-03 13:48:56

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