Due Process and Punitive Damages: An Economic Approach

22 Pages Posted: 10 Oct 2007 Last revised: 23 Oct 2007

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

Date Written: October 9, 2007


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.

Keywords: torts, law and economics, litigation, rent-seeking, due process clause, public choice, Philip Morris v. Williams, Lochner

JEL Classification: K00, K13, K41

Suggested Citation

Hylton, Keith N., Due Process and Punitive Damages: An Economic Approach (October 9, 2007). Boston Univ. School of Law Working Paper No. 07-26. Available at SSRN: https://ssrn.com/abstract=1020262 or http://dx.doi.org/10.2139/ssrn.1020262

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-8959 (Phone)
617-353-3077 (Fax)

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