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Abstract

Part I of this Article chronicles and summarizes the development of the Supreme Court’s punitive damages jurisprudence. Over the past two decades, the Court has increasingly constitutionalized various aspects of punitive damages jurisprudence, using both procedural and substantive due process rationales. A set of three “guideposts” has emerged that courts are to use in determining whether a punitive damages award runs afoul of constitutional guarantees.

Part II outlines the multiple punishments problem that is currently facing courts throughout the country and provides a brief overview of the various failed attempts and current proposals to remedy this problem.

Part III provides the factual and procedural background of Philip Morris, culminating with the Oregon Supreme Court’s affirmance of the $ 79.5 million jury verdict. Part III then analyzes and critiques the United States Supreme Court’s opinion in Philip Morris, including Justice Breyer’s majority opinion and the three dissenting opinions, the Oregon Supreme Court’s ruling on remand, and the telling response of the United States Supreme Court to Philip Morris’ subsequent writ of certiorari. Part III also briefly analyzes Exxon Shipping Company v. Baker and explains why what did not happen in that case is quite significant.

Part IV then deconstructs and reconstructs the Court’s current punitive damages jurisprudence, examining the current makeup of the Court and analyzing whether there is reason to believe that the addition of Justices Roberts, Alito, Sotomayor, and Kagan might provide any restraining influence on the Court’s punitive damages jurisprudence. Part IV then concludes that given the balance of power on the Court, and given the Court’s indirect “fix” of the multiple punishments problem, the Court is unlikely to take any more punitive damages cases in the near future.

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