Punitive Damages in an Era of Consolidated Power

Abstract

Punitive damages are back in the news, and the Supreme Court’s jurisprudence surrounding them is a mess. The Court’s decisions do, however, reveal one striking and unifying theme: the Court does not trust others to assess punitive damages fairly. Instead, at every turn, the Court has adopted rules that move the locus of power over punitive damages away from juries, factfinders, states, and communities, and toward appellate judges (including the Court itself). The result is that the amounts of punitive damages — historically, firmly within the power of juries — are now subject to an unprecedented level of centralized control, a phenomenon I call judicial centralization. This Article traces the rather remarkable narrative of the Court’s punitive damages jurisprudence through the lens of judicial centralization and considers whether it is desirable, concluding that it is not. The primary justifications for judicial centralization are uniformity and predictability, but the flip sides — particularity and variability — serve similarly important functions. Institutional competence also does not provide a compelling explanation, as both judges and juries have real claims to the type of moral expertise that punitive damages implicate. Ultimately, the deciding factor in this inquiry is democratic values. In an age where power is increasingly consolidated in large corporations and the ability of the “little guy” to affect the world is ever-diminishing, punitive damages can serve as an important opportunity for voice, and judicial centralization undermines this important value.

Keywords: punitive damages, constitutional law, Supreme Court, torts, democratic theory, appellate judges, centralization

JEL Classification: k10