Remedies Reading Assignment For class on 9/28, we will start discussing the common law and state statutory rules pertaining to awards of punitive damages. This issue is DIFFERENT from the constitutional review of punitive damages regarding excessiveness (which we may also briefly start discussing). Read pp. 171-84 Punitive Damages – COMMON LAW & STATE STATUTES 1. What are the purposes of awarding punitive damages? Why don’t compensatory damages adequately serve those purposes? 2. Even aside from the constitutional issues related to whether punitive damages are excessive, courts and legislatures have attempted to rein in potentially excessive punitive damage awards for decades. Methods include: a. Some states use the “epithet” approach – i.e., verbal formulations telling the jury to determine whether D has acted “outrageously” or “maliciously.” (See p. 181 n. 4). How useful is this approach? b. Some states use a “factors approach” – i.e., telling juries to consider several factors to determine if punitives are appropriate and/or using such factors on judicial review. i. What factors are relevant here – consider the factors at p. 175 (after heading F1) when thinking about this? ii. Should juries be instructed to take those factors into account in awarding damages or should judges use them to review jury awards for excessiveness (remittitur)? c. In Exxon, the Court used “multipliers” on review to determine whether punitive damages were excessive at common law (only true in federal courts because of uniqueness of maritime cases). i. Why does it use a 1:1 ratio of punitive to compensatories? ii. Are judicially imposed multipliers a sound approach – as opposed to statutory limits? d. Using the facts of the Exxon case – how would Exxon have fared in jurisdictions using each of the above approaches to award punitive damages? 3. As part of the longstanding tort reform effort, many legislatures have also restricted punitive damage awards: a. Are Missouri’s laws regarding punitive damages (which are posted on the website along with this reading assignment) an effective and/or fair means of restricting punitive damages? b. Do such laws allow punitive damages to serve their stated goals? Punitive Damages – CONSTITUTIONAL REVIEW Read pp. 188-90 nn.1-2 (these are just the NOTES following State Farm – we will read the actual case on Thursday). This reading begins our discussion of the constitutional issues raised by potentially excessive punitive damages awards – this is a different issue from the common law issues. As you read, consider the following: 1. 2. 3. Keep in mind that a jury can violate the constitution by failing to use appropriate procedural safeguards (violates procedural due process) or by imposing an excessive punitive damages award (violates substantive due process). The notes detail only briefly some of the issues re procedural due process – I will set some of this out in greater detail in class. Why should courts get involved in the substantive due process issue? Doesn’t common law review provide a sufficient safeguard against excessive damages? BMW v. Gore was the first case to reverse a punitive damages award as excessive under the substantive due process rationale – it announced 3 guideposts. Be familiar with them.