The Discriminatory Application of Substantive Due Process: A Tale of Two Vehicles

Posted: 13 Nov 1996

See all articles by Susan R. Klein

Susan R. Klein

University of Texas School of Law


This essay compares the substantive due process analysis in two cases the Court rendered last term: Bennis v. Michigan, 58 Cr.L. 2059 (3/4/96) and BMW of North America, Inc. v. Gore, 1996 WL 262429 (5/20/96). In Bennis, the Court held that the Due Process Clause was not offended by the state's confiscation of property from an innocent owner who had committed no wrongful act, while in Gore the Court held that the same clause was offended by a grossly excessive monetary award against a property owner who had committed an intentionally wrongful act. I first attempt to explain the result in Bennis by employing various criminal and civil law doctrines, and then attempt to harmonize Bennis with Gore. Failing at both, I ultimately conclude that Bennis is simply wrong and that the two cases are irreconcilable. They stand as stark examples of the Court's continuing inability to agree on the existence and contours of substantive due process, to develop a test with distinguishes between remedial and punitive sanctions, and to apply legal doctrines rigorously when this may limit legislative sanctions imposed upon those convicted of crimes and their associates.

JEL Classification: K41

Suggested Citation

Klein, Susan R., The Discriminatory Application of Substantive Due Process: A Tale of Two Vehicles. Available at SSRN:

Susan R. Klein (Contact Author)

University of Texas School of Law ( email )

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