The Spring 2008 edition of the Mercer Law Review has a casenote on Philip Morris v. Williams entitled “Who’s on First? Why Philip Morris USA v. Williams Left Juries Confused About Whose Injuries Can Be Considered When Determining Punitive Damages.” (I don’t have a link to the article, but the Westlaw citation is 59 MERLR 1043.)

The note, written by Steven Moulds, is largely a summary of the Williams decision and the Supreme Court’s recent series of punitive damages decisions. But the note concludes with a few interesting observations. Among them is the observation that only Justice Thomas, and not Justice Scalia, dissented on the ground that the Constitution does not protect defendants from excessive punitive damages. The article notes that Justice Scalia consistently dissented on that basis in the Court’s prior punitive damages cases, but he did not do so in Williams. He did not write a separate opinion on that basis nor did he join Justice Thomas’ dissent. Instead he joined Justice Ginsburg, who did not address whether the Constitution limits the jury’s discretion to award punitive damages.

The article suggests that “Justice Scalia’s shift from Justice Thomas’s to Justice Ginsburg’s dissent might suggest that he is backing down from his previous dissents in Gore and Campbell, and that he may accept some limitations on punitive damages in future cases.” It never occurred to me before that Justice Scalia’s nonparticipation in Justice Thomas’s dissent might suggest a shift in Justice Scalia’s views. I had always assumed Justice Scalia did not think it necessary to reiterate his standing objection to the court’s due process excessiveness analysis in Williams because the Court did not reach that issue in Williams. We may have to wait some time to learn whether Justice Scalia’s views have shifted. Although the forthcoming decision in the Exxon Valdez case could conceivably shed some light on the issue, in all likelihood that decision will not delve into any Constitutional issues.