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Procedural Due Process and Predictable Punitive Damage Awards

67 Pages Posted: 3 Aug 2011 Last revised: 6 Mar 2014

Jill Wieber Lens

Baylor University - Law School

Date Written: August 2, 2011


In Exxon Shipping Co. v. Baker, the Supreme Court’s most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their “stark unpredictability.” The Court abandoned all hope that common law jury instructions could produce predictable punitive damage awards. Instead, the Court suggested pegging punitive damage awards to compensatory damage awards. So far, analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding.

Exxon should not be overlooked, however, as it signals a resurgence of procedural due process as a basis for challenging punitive damage awards — a type of challenge the Court has not heard since the early 1990s. Predictability of the amount is no different than fair notice of the likely severity of an award, which procedural due process requires. If common law jury instructions cannot produce predictable punitive damage awards, they also cannot produce awards consistent with the notice procedural due process requires. The Court’s Exxon pegging solution will not produce predictable awards (and ones that comply with procedural due process) because it relies on compensatory damages, which are inherently unpredictable. As an alternative, this Article suggests looking to restitution, a non-controversial punitive, civil remedy. Basing punitive damages on the defendant’s gain would produce predictable awards—as procedural due process requires.

Keywords: Punitive damages, Procedural due process, predictability, Exxon Shipping Co

Suggested Citation

Lens, Jill Wieber, Procedural Due Process and Predictable Punitive Damage Awards (August 2, 2011). Brigham Young University Law Review, Vol. 2012, No. 1, 2012. Available at SSRN:

Jill Wieber Lens (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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