Due Process and Punitive Damages: An Economic Approach
Keith N. Hylton
William Fairfield Warren Distinguished Professor, Boston University; Professor of Law, Boston University School of Law
October 9, 2007
Boston Univ. School of Law Working Paper No. 07-26
This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower courts to distinguish takings from punishment consistent with reasonable regulation. This paper suggests general guidelines for developing such doctrines.
Number of Pages in PDF File: 22
Keywords: torts, law and economics, litigation, rent-seeking, due process clause, public choice, Philip Morris v. Williams, Lochner
JEL Classification: K00, K13, K41working papers series
Date posted: October 10, 2007 ; Last revised: October 23, 2007
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