Marching to a Different Drummer: Are Lower Courts Faithfully Implementing the Evolving Due Process Guideposts to Catch and Correct Excessive Punitive Damages Awards

This article seeks to determine, by examining the most recent eight years of relevant lower court decisions, how “faithful" the lower state and federal courts actually are to the Supreme Court’s “marching orders” in applying the three “Guideposts” prescribed by the Court for carrying out this newly required substantive due process analysis. In this is the first of two papers planned for mining the 467-cases collected in this study, primary emphasis is placed on investigating the “faithfulness” concern raised by three Justices in the oral arguments in the 3rd iteration of Philip Morris v. Williams. The more important questions of how the “Guideposts” are working out in practice within the lower courts that must interpret and apply them, and how they might be clarified and improved to enhance their utility will be addressed rigorously using the same 467-cases in a subsequent article to be co-authored with Professor Laura J. Hines. This article first traces the meandering path followed by the Supreme Court’s evolving substantive due process standards for determining whether a punitive damages award is unconstitutionally arbitrary or excessive. An attempt is then made to demonstrate how the “Guideposts” are intended to work in practice by applying them to a hypothetical suit for punitive damages brought against BP for harms resulting from the Deepwater Horizon disaster. Next, the article takes a brief look at the conventional expectations that attend a decision being remanded to a lower court for further action. The process for identifying, collecting, classifying and analyzing eight years’ worth of punitive damages decisions is described and conclusions are presented regarding the extent the concern about lower court “unfaithfulness” to the new constitutional framework for reviewing punitive damages awards finds support in the 467 decided cases.