July 25, 2008

Doug Rendleman Law Review Article: "A Plea to Reject the United States Supreme Court's Due Process Review of Punitive Damages"

Doug Rendelman, a law professor at Washington & Lee School of Law, has posted this article on SSRN. Here's the abstract:

Because the audience and readers of this piece are not United States lawyers, I supply background and I paint with a broad brush. In short, the United States Supreme Court's use of the Due Process Clause for judicial tort reform of punitive damages was a serious mistake. On the nebulous due-process foundation, the Court built imprecise yet wrongheaded doctrine based on misguided policy justifications. Other common-law countries ought to learn from our blunders, above all not to repeat them.

I wrote this for the Second International Symposium on the Law of Remedies sponsored by the University of Windsor and the University of Auckland. The Symposium was in Auckland, New Zealand, in November 2007. It will be published in 2008 in a book titled The Law of Remedies: New Directions in the Common Law edited by Jeff Berryman and Rick Bigwood. The footnotes are in Canadian, not Bluebook, form.
The adoption of U.S.-style judicial review of punitive damages is not likely to be a big issue in many countries; most other legal systems don't seem to generate the sort of mega-awards we see here in the U.S. As far as the U.S. system goes, Rendleman's criticisms echo the views Justices Scalia and Thomas have expressed ever since the Supreme Court required due process review of punitive damages in BMW v. Gore in 1996. Nevertheless, there is no indication that Justices Scalia and Thomas will be able to win over a majority of the justices on that issue anytime soon. Things may change, however, if McCain wins the presidential election and appoints a justice or two in the Scalia/Thomas mold. This is one area in which a more conservative court would actually be bad news for business interests.