Professor Rick Hasen has posed this question on Election Law Blog: “Are the Courts Likely to Sustain the $65 Million in Punitive Damages Awarded Against Trump in the E. Jean Carroll Defamation Case?

Hasen’s post discusses a Manhattan jury’s decision last Friday to award $65 million in punitive damages and $18.3 million in compensatory damages against former President Donald Trump for his social media defamation of longtime advice columnist E. Jean Carroll.

Hasen concludes that the punitive damages award is “uncertain to stand,” which sounds about right to me.  If the verdict in this case had occurred in California, the outlook would be similarly cloudy.

As Hasen notes, the U.S. Supreme held in State Farm v. Campbell that the ratio of punitive damages to compensatory damages should be low, perhaps no more than one-to-one, in cases involving substantial compensatory damages.  If the Trump verdict had occurred in the few years after Campbell was decided, we could have confidently predicted that the courts would reduce the award to something in the $18 million range.  However, as the years have passed, courts have shown an increasing willingness to uphold awards where the ratio exceeds one-to-one, even in cases with very large compensatory damages awards.  For example, in the recent decision in Rudnicki v. Farmers, the California Court of Appeal affirmed an $18.4 million punitive damages award where the compensatory damages were $5.4 million.

The ratio in the Trump case is about 3.6 to one, which might be low enough to survive judicial review if the courts sidestep the one-to-one ratio language in Campbell. We shall see.