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The Road Not Taken: Would Application of the Excessive Fines Clause to Punitive Damages Have Made a Difference?

23 Pages Posted: 29 May 2008  

Sheila B. Scheuerman

Charleston School of Law


This essay was written for the Widener Law Journal CrimTorts Symposium, and examines a theoretical question concerning the intersection of criminal law and punitive damages: Would the punitive damages legal framework materially differ today had the Supreme Court held that the Excessive Fines Clause rather than the Due Process Clause governs punitive damages?

In 1989, the Supreme Court rejected application of the Excessive Fines Clause to punitive damages. Instead, the Court subsequently held that substantive and procedural due process guide and limit punitive damages awards. In the Court's most recent punitive damages decision, however, Justice Stevens, perhaps motivated by dissatisfaction with the Court's recent punitive damages jurisprudence, suggested in his dissent that the Court should have taken a different road, and applied the Excessive Fines Clause to these awards. This essay takes that suggestion to fruition and considers whether the road not taken would have materially affected the current analytical framework for assessing punitive damages. I found that the standards for assessing the constitutionality of fines and punitive damages awards largely overlap and, indeed, have influenced each other significantly. To the extent any differences exist, they are largely immaterial. In short, I conclude that the road not taken leads to the same destination.

Keywords: punitive damages, excessive fines, due process, philip morris v. williams

JEL Classification: K10, K13, K14, K40, K42

Suggested Citation

Scheuerman, Sheila B., The Road Not Taken: Would Application of the Excessive Fines Clause to Punitive Damages Have Made a Difference?. Widener Law Journal, Forthcoming. Available at SSRN:

Sheila B. Scheuerman (Contact Author)

Charleston School of Law ( email )

Charleston, SC 29402
United States

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