Judicial Preemption of Punitive Damages

Abstract

In the 1990s, the Supreme Court recognized that excessive punitive damages could violate substantive and procedural due process. In the intervening years, the public debate regarding excessive punitive damages has focused primarily on the question of whether the American judicial system should prefer the rights of injured plaintiffs or the interests of defendant corporations. More cynically, the question often becomes whether our judicial system should favor the interests of the trial attorneys' bar or the Chamber of Commerce.

While the scholarly debate has been broader, the literature has been insufficiently attentive to the manner in which the lower courts have implemented the Supreme Court's standards for assessing whether punitive damages are excessive. This Article suggests that the process judges use to review punitive damages awards for substantive constitutional excessiveness results in de facto judicial preemption, where judges improperly exercise power belonging to other constitutional actors and impinge upon important interests, such as federalism, the separation of powers, and the dynamism of the common law. Whether such de facto judicial preemption is motivated by conscious or unconscious desire to manipulate damages awards or even just by sloppy or unprincipled analysis, the effects are equally serious.

This Article describes the three problematic analytical mechanisms that cause judicial preemption and the distinct harms associated with each of them. It also demonstrates that judicial preemption is especially worrisome in the employment discrimination context, which relies on overlapping remedies regimes for full enforcement, where statutorily enacted punitive damages caps are not necessarily related to punishment and deterrence goals, and where a judge's personal opinions about punishment and deterrence may be at odds with those of legislatures and juries.

It then considers ways to counteract these harms. It concludes by asserting that the way in which the lower courts have implemented the Supreme Court's standards actually directs courts away from, rather than toward, the questions they should be asking in reviewing punitive damages awards.

Keywords: Employment Discrimination, Title VII, ADEA, ADA, remedies, punitive damages

JEL Classification: K13