Professor Catherine M. Sharkey of NYU Law has posted her forthcoming Willamette Law Review article on SSRN: “Federal Incursions and State Defiance: Punitive Damages in the Wake of Philip Morris v. Williams.”

Here’s the abstract:

For more than a decade, the United States Supreme Court has intervened in state courts to police outlier punitive damages jury awards. As an interloper in the domain of state common law, the Court walks a fine line. The Court has been forthright about its resolve to restrain what it deems to be grossly excessive punitive damages jury awards, invoking its constitutional authority under the Due Process Clause of the Fourteenth Amendment. At the same time, the Court treads gingerly to avoid trampling upon the legitimate state interests inherent in the award by juries, and subsequent appellate review by state courts, of punitive damages. The resultant partial “federalization” of punitive damages produces an inherently unstable equilibrium, with the Court’s federal excessiveness review superimposed on state substantive and procedural law of punitive damages. Fault lines have emerged in the federal-state punitive damages tectonics.

The tale of Philip Morris v. Williams is a hiccup in the unfolding story of increasing federalization of the law of punitive damages. It highlights some underappreciated inherent limitations, given our federal system, on federal court authority and power in the state law realm of punitive damages. It provides an example alternately of courage or of woeful defiance on the part of a state court that stood up to the U.S. Supreme Court. But, most significantly, it lays bare – and, more provocatively, may unleash – the untapped potential on the part of state courts and legislatures to stake out the metes and bounds of the legitimate state interests in punitive damages.

To date, states have not pressed non-retributive punishment rationales for punitive damages. But if a state were to articulate a societal compensatory or deterrence purpose in enacting a statutory multiplier for certain torts, or a split-recovery scheme (or a combination of both), the Court would be hard-pressed to strike down these legislative enactments as unconstitutional. Should Williams awaken the sleeping state giants, that would be an ironic twist of fate for a Court that has downplayed the federalism interests at stake in its unfolding punitive damages jurisprudence.

We often post about law review articles on punitive damages, but we’ve never before posted about an article written by a sitting state supreme court justice. Justice Robin Jean Davis of the West Virginia Supreme Court has written an article entitled Punitive Damages Law in West Virginia. The 75-page long article covers not only West Virginia state law, but also discusses the U.S. Supreme Court’s punitive damages opinions.

Hat tip: the West Virginia Record

Here’s an article suggesting that judges, as a group, tend to overstep their authority when reviewing punitive damages awards for excessiveness. The article, written by Professor Sandra Sperino of the Temple University Beasley School of Law, is entitled “Judicial Preemption of Punitive Damages.” The article was published in the University of Cincinnati’s Fall 2009 edition, which was recently uploaded onto Westlaw (78 UCINLR 227). Here’s the abstract:

In the 1990s, the Supreme Court recognized that excessive punitive damages could violate substantive and procedural due process. In the intervening years, the public debate regarding excessive punitive damages has focused primarily on the question of whether the American judicial system should prefer the rights of injured plaintiffs or the interests of defendant corporations. More cynically, the question often becomes whether our judicial system should favor the interests of the trial attorneys’ bar or the Chamber of Commerce.

While the scholarly debate has been broader, the literature has been insufficiently attentive to the manner in which the lower courts have implemented the Supreme Court’s standards for assessing whether punitive damages are excessive. This Article suggests that the process judges use to review punitive damages awards for substantive constitutional excessiveness results in de facto judicial preemption, where judges improperly exercise power belonging to other constitutional actors and impinge upon important interests, such as federalism, the separation of powers, and the dynamism of the common law. Whether such de facto judicial preemption is motivated by conscious or unconscious desire to manipulate damages awards or even just by sloppy or unprincipled analysis, the effects are equally serious.

This Article describes the three problematic analytical mechanisms that cause judicial preemption and the distinct harms associated with each of them. It also demonstrates that judicial preemption is especially worrisome in the employment discrimination context, which relies on overlapping remedies regimes for full enforcement, where statutorily enacted punitive damages caps are not necessarily related to punishment and deterrence goals, and where a judge’s personal opinions about punishment and deterrence may be at odds with those of legislatures and juries.

It then considers ways to counteract these harms. It concludes by asserting that the way in which the lower courts have implemented the Supreme Court’s standards actually directs courts away from, rather than toward, the questions they should be asking in reviewing punitive damages awards.

TortsProf Blog has posted the abstracts of two law review articles critquing Professor Dan Markel’s recent article, “How Punitive Damages Should Work.” Markel’s article, along with both responsive articles, can be found at PENNumbra, the on-line companion of the University of Pennsylvania Law Review.

When a jury awards a large punitive damages awards, one of the first question for the lawyers on both sides is: Will this award survive posttrial and appellate review? A new paper posted on SSRN may help answer that question. Profesors Edward K. Cheng and Albert Yoon have written an essay entitled “Predicting the Constitutionality of Punitive Damages.” Here’s the abstract:

The constitutional doctrine governing punitive damages captivates legal scholars and jurists in part because it is both complex and evolving. The unpredictability, however, presents difficulties for attorneys and their clients, who need greater certainty to make practical decisions about litigation and settlement. In this Essay, we offer a statistical approach for predicting court decisions on the constitutionality of punitives. As it turns out, basic logisitic regression methods with appropriate model selection can be quite effective, although we make further gains using a Bayesian hierarchical approach. Using a new dataset of cases challenging punitive damage constitutionality from 1989 to 2008, our hierarchical model can predict out-of-sample outcomes with 76-85 percent accuracy. These results suggest that while constitutionality may not be subject to a deterministic formula, it can be effectively modeled statistically. Beyond the punitive damages context, our work additionally offers a glimpse of the potential of statistical models for predicting a wide variety of legal questions.

Hat tip: Torts Prof Blog.

Suprisingly, the subject of punitive damages in admiralty cases has become a hot topic in recent years, with the Supreme Court taking up two cases in this area (Exxon Shipping and Atlantic Sounding Co. v. Townsend.)

Unfortunately for those who actually care about these issues, the Supreme Court split 4-4 on the primary admiralty law issue in Exxon Shipping, namely, whether punitive damages can be imposed on a ship owner for the acts of a ship captain. Admiralty experts can blame Justice Alito for the continuing lack of guidance. He recused himself from Exxon Shipping because he owns Exxon Mobil stock.

Fear not, admiralty punitive damages gurus, the Tulane Law Review is here to help. Their June 2009 issue arises out of a symposium on admiralty law and contains two articles on punitive damages in admiralty cases. The aptly named professor John Paul Jones* of the University of Richmond authored “The Sky Has Not Fallen Yet on Punitive Damages in Admiralty Cases” and Tulane law student Megan Ann Healy wrote “Exxon Shipping Co. v. Baker: The Supreme Court’s Indecision Leaves Shipowners List at Sea as to the Applicability of Vicarious Liability for Punitive Damages.” I can’t find a linkable version of either article, but the Westlaw citations are 83 TLNR 1289 and 83 TNLR 1521, respectively.

*Yes, there really is an admiralty expert named John Paul Jones. No, not this John Paul Jones.

The July 2009 edition of Defense Counsel Journal, a publication of the International Association of Defense Counsel, contains an article entitled “Defending the Punitive Damages Claim: How to Use Philip Morris v. Williams and Exxon Shipping Co. v. Baker.” The article was written by Kristen Dennison, an associate at Campbell, Campbell, Edwards & Conroy. (No linkable version is available, but you can find it on Westlaw at 76 DEFCJ 368.)

Some highlights:

Philip Morris is not just a jury instruction case. It stands for an important procedural due process principle involving the right to be heard and to defend those other claims. Philip Morris can, and should, be used in conjunction with Gore and State Farm for the argument that the standards for imposing punitive liability in product liability actions are unconstitutionally vague.

Exxon Shipping is not just a maritime law case. Rather, it provides instructive insight into the Court’s concern over the vague standards used by most states for imposing punitive liability, and the resulting problem of “outlier” punitive damages awards that are inconsistent between the same types of cases, causing the very arbitrariness, uncertainty, and lack of notice that Philip Morris denounced.