The End of an Era: The Supreme Court (Finally) Butts Out of Punitive Damages for Good

75 Pages Posted: 7 Sep 2011

See all articles by James Allan Gash

James Allan Gash

Pepperdine University - Rick J. Caruso School of Law

Date Written: September 1, 2011


For the first two hundred years of its existence, the United States Supreme Court wisely left matters of punitive damages to the several states to decide. Just over twenty years ago, however, the Court broke its silence, and did so in a series of increasingly invasive (and splintered) decisions that invoked substantive due process principles. The Court’s incursion into punitive damages has been driven by its concern with the multiple punishments problem. With the confirmation of Justices Roberts and Alito, many Court watchers predicted that the new justices would join the dissenters and reverse these cases, returning the power in the punitive damages realm to the states. And shortly after taking their places on the bench, the Court decided in rapid succession two punitive damages cases – Philip Morris v. Williams and Exxon Shipping Company v. Baker. In both cases, however, the Court sidestepped the substantive due process question, resolving Philip Morris on procedural due process and Exxon on federal common law grounds. This Article critically analyzes both cases and demonstrates that, when coupled with the recent confirmation of Justices Sotomayor and Kagan, the Supreme Court is now done with punitive damages cases for good. This is true because (i) the Court believes that it has done all that it can to remedy the multiple punishments, and (ii) the judicial philosophies of the newly appointed justices will further solidify the emerging détente on this issue.

Keywords: tort, damages, punitive damages, due process, substantive due process, remedy, multiple punishments, Supreme Court

Suggested Citation

Gash, James Allan, The End of an Era: The Supreme Court (Finally) Butts Out of Punitive Damages for Good (September 1, 2011). Florida Law Review, Vol. 63, 2011, Pepperdine University Legal Studies Research Paper No. 2011/18, Available at SSRN:

James Allan Gash (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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