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Wednesday, February 09, 2005

SDP and Punitive Damages

As I noted in my earlier post, punitive damages seem like a wild departure from the court's regular economic substantive due process jurisprudence since the permissible purposes for the deprivation of property are not "any rational basis," but are restricted to a state's interest in deterrence and retribution. Moreover, the court's recent holdings in Gore and State Farm seem to require a narrow tailoring of damages awards to those two specific purposes.

I'm not saying that I'm a huge fan of the cases. At first blush I certainly felt as T. More seems to. But I wonder how far these cases actually depart.

Think of them in the context of the "rational basis with teeth" line of equal protection cases. Cleburne held that mere negative attitudes or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses. Thus, even though the mentally retarded are not a "protected class" and don't get any heightened review, the basis for discrimination must nonetheless be rational.

Likewise in Moreno (hippies) and Romer (sexual orientation) the court found discrimination to fail even the easiest bar to discrimination. Olech held that even for people in no class, everyone has a right against arbitrary and irrational discrimination.

So, in punitive damages, the question seems to be whether the court is correct in saying that punishment and deterrence are the only rational purposes for awarding punitive damages. The gist of the holdings of the above equal protection cases is that "animus" is not a rational basis, and that discrimination based solely on it will fail. Similarly, arbitrary and excessive punishment may fail even this low bar.

The Court may get Gore and State Farm wrong in the "exacting" review that they mandate of lower court damages awards, but I don't know that dismissing these cases as comparable to Roe and Lawrence, as T. More seems to do, is fair. The "minimum rationality" test must mean that something doesn't pass. Certainly juries are capable of acting irrationally . . .

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