Thank you for sharing!

Your article was successfully shared with the contacts you provided.

For the fifth time in 12 years, the Supreme Court agreed to hear a case involving the imposition of punitive damages and, once again, the Court articulated criteria and principles against which lower courts and litigants can measure the type of conduct that should support an award of punitive damages. State Farm Mut. Auto Ins. v. Campbell, 123 S.Ct. 1513 (April 7, 2003). Vague jury instructions affording broad discretion, unrestrained passion and prejudice overshadowing reason, and permissive state court judges substantially approving disproportionate awards have all conspired to undermine the principled application of BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996), by state courts. (Justice Antonin Scalia’s dissent in Campbell deemed Gore “insusceptible of principled application.”) Writing for the 6-3 majority, Justice Anthony Kennedy opined: “The Utah Supreme Court sought to apply the three guideposts we identified in Gore.” (emphasis added) Continued unpredictable state punitive damage awards arising out of inconsistent application of the Gore guideposts led the Court’s majority to define applicable constitutional standards further and offer what is hoped will be a greater measure of predictability to would-be litigants. No doubt, Campbell has afforded corporate defendants significant tools for curtailing runaway exemplary damages. Still, amid the defendants’ celebrations (remember that similar euphoria followed Gore), uncertainty remains. In fact, Justice Ruth Bader Ginsburg’s dissent cautioned that Campbell “takes place on ground not long held.” In short, it may be too soon for defendants to celebrate.

What is certain is that substantive due process offers defendants a compelling argument: that disproportionate punitive judgments constitute an arbitrary deprivation of property by failing to provide defendants with fair notice of punishable conduct and fair notice of the gravity of the penalty. Specifically, Campbell affords defendants:

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.