Comments on: Buell-Wilson v. Ford redux

By: ruralcounsel

ruralcounsel — Tue, 18 Mar 2008 10:20:32 +0000

Punitive damages are not for ex post facto behavior, but are for the initial tortious behavior which is particularly egregious or shocking. (Think intentional!) At least some times.

For example, punitive (3x) damages are authorized by statute in patent infringement cases. As are attorney fees. Anyone infringing should know that … it isn’t a surprise after the fact.

In a straight civil tort case, it seems a little more ambiguous. The jury gets hold of an emotional theme, and reason disappears. But that’s a failing of ignorant juries … far too many people live in this society with bizarre socialist notions of “people’s justice” to go after legal commercial behavior that they personally dislike. But that is an indictment of the jury composition, not the concept of punitive damages.

By: William Nuesslein

William Nuesslein — Mon, 17 Mar 2008 04:28:02 +0000

Punitive damages define a crime and its punishment after an event. They are ex post facto in nature, and violate a universal legal principle. The Supreme Court should rule that that such awards are unconstitutional absent a legislative regime that would rationally define a crime and its consequence.

By: The Curmudgeonly Ex-Clerk

The Curmudgeonly Ex-Clerk — Sun, 16 Mar 2008 12:42:50 +0000

Seems to me that the same basic thing eventually happened in Oregon with the Williams case itself (i.e., the state court passed on the opportunity to apply the U.S. Supreme Court's punitive damages jurisprudence). Unless it is going to devote a fair amount of its limited docket to these cases, the U.S. Supreme Court doesn't have the ability to police the punitive damages decisions of 50 state jurisdictions as well as those decided in the federal courts.

Even if the Court could police this area of the law on its own, I'm not sure it would do much good for it to try. To say the least, its decisions in this area have not been a model of clarity. For example, how is a jury supposed to consider harms to nonparties for purposes of assessing reprehensibility but not let that affect the actual amount of punitive damages assessed (as required by Williams)?

In my opinion, if punitive damage awards are going to be limited to reasonable amounts in appropriate cases, state legislatures are going to have to address the matter in detail. (The same thing goes for over-the-top compensatory damage awards predominately comprised of noneconomic harms.) It's folly to think the Supreme Court can set matters right regarding punitive damages.