Remedies Reading Assignment

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
What are the purposes of awarding punitive damages? Why don’t compensatory
damages adequately serve those purposes?
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?
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?
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:
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.