I had a mixed reaction to the Court's recent Philip Morris decision. On the one hand, there is a crisis of excessive punitive damages. On the other, no one who agress with the late Justice White (dissenting in Moore v. East Cleveland) that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution[]" can greet with complete delight the opening of yet another vein of substantive due process. Yet this is what the Court has done in BMW v. Gore, State Farm v. Campbell, and now in Philip Morris v. Williams.

That the Court has its hand in the substantive-due-process cookie jar in these cases cannot really be doubted. The Court's claim to address only the "procedural" question of the instruction on harm to nonparties was no doubt intended to deflect this argument, but it did not convince Justice Thomas ("the 'procedural' rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages"), and it does not convince me.

At the dawn of the first s.d.p., the same confusion occurred. See e.g. Chicago Milwaukee & St. Paul RR v. Minnesota, 134 U.S. 418 (1890). Railroads objecting to ratemaking couched their claims in procedural terms: the regulating agency did its ratemaking without giving us a special hearing, see, and all we want is that hearing. Piffle! They were going for a court-mandate role in setting rates; once the Court was convinced to strew procedural banana peels along the path of regulation, as requirements of due process, it was a short leap to declaring the regulations themselves unconstitutional.

Philip Morris v. Williams supposedly avoids the question of excessive fines, and imposes a merely "procedural" requirement that the trial judge should be clearer about the role that harm to nonparties should playing in the jury's punitive damages calculation. Why a juror should find the Court's clarification any clearer than the instrution actually given, I'm sure I don't know, but the point here is, this "procedural" rule imposes a substantive requirement: that the Due Process Clause of the 14th Amendment prohibits civil juries from punishing defendants separately for harm to nonparties. I don't find that in the Due Process Clause. I'd be glad if it were there, but I can't find it.

The next post on this issue will be by Prof. Michael Krauss, who taught me everything I know about tort law, and with whom I expect I'll be in complete policy agreement about the general goshawfulness of heavy punitive damages.

David M. Wagner
Associate Professor
Regent University School of Law