Amicus Curiae Brief — Cooper Industries, Inc. v. Leatherman Tool Group, Inc.

(7 \

_ 3

‘ AUS -3 ond

IN THE co

Supreme Court of the United States

COOPER INDUSTRIES, INC.,

Petitioner,

v.

LEATHERMAN TOOL GROUP, INC.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF ERWIN CHEMERINSKY

AND ARTHUR F. McEVOY AS

AMICI CURIAE IN SUPPORT OF PETITIONER

ERWIN CHEMERINSKY ARTHUR F. MCEvoy

699 Exposition Boulevard 975 Bascom Mall

Los Angeles, California 90089 § Madison, Wisconsin 53706

(213) 740-2539 (608) 265-4771

KENNETH CHESEBRO*

1600 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 661-4423

Counsel for Amici Curiae

*Counsel of Record

August 3, 2000

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

n\

TABLE OF CONTENTS

ee I 6-5 0066540606 hecrcncencitesees il

UCD GU AIS GUE occ cccccersceseeseseseces l

RPPUEES GU FRIESE vce cccccserssovccenscsccees l

OE ere eT Tere rrr eT er ere 3

CERTIORARI IS WARRANTED IN LIGHT OF THE

CONFLICT AND CONFUSION AMONG THE FEDERAL

CIRCUIT COURTS OF APPEALS CONCERNING THE

REVIEW OF JURY-AWARDED PUNITIVE DAMAGES ..... 3

A. Several Circuits Engage in De Novo Review of

Whether the Jury’s Award is Rationally Supportable on

the Record, Consistent With the Traditional Standard

of Review for Both Criminal and Civil Jury Verdicts .. 4

B. The Eleventh Circuit Improperly Defers to “Factual”

Findings Made by District Courts in Reviewing Jury

Verdicts, Carrying With It the Twin Risks of Undue

Interference With Rational Jury Verdicts, and the

Approval of Irrational Jury Verdicts .............. 12

C. The Third Circuit Improperly Employs “Intensive

Review,” in Violation of Both Statutory and

Seventh Amendment Strictures on the Scope of

Federal Appellate Review of Jury Verdicts ......... 15

D. Although the Approach of the Ninth Circuit is

Not Entirely Clear, This Case is an Appropriate

Vehicle for Review of the Circuit Court Conflict .... 18

EE 6 cc Aw dhdeeedeewdereN Shenendeses coves 20

TABLE OF AUTHORITIES

CASES: PAGE:

Air Safety, inc. v. Roman Catholic Archbishop,

Oe Van 6 CRG FES once cccenntuescesescenuedaneseds 7

Alvarez-Crespol v. Olavarria-Rivera, 994 F.2d 35 (1st Cir. 1993) .. 10

BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ....... 11

Brady v. Southern Ry., 320 U.S. 476 (1943) 2.0... eee 9

Buntin v. Breathitt County Bd. of Educ.,

SF bo os 8 Pee eee 9

Burks v. United States, 437 U.S. 1 (1978) ...........0 6 ee cece 8

Campbell v. St. Tammany Parish Sch. Bd.,

66 FDO CS Gr ee HOSE ook vnadenkessvsceesvacsdnannue 9

Continental Trend Resources, Inc. v. OXY USA, Inc., 101 F.3d 634

(10th Cir. 1996), cert. denied, 520 U.S. 1241 (1997) .......... 6

Davis v. United States Postal Serv., 142 F.3d 1334 (10th Cir. 1998) . 9

Doby v. Decrescenzo, 171 F.3d 858 (3d Cir. 1999)... .......0.0.4. 9

Favorito v. Pannell, 27 F.3d 716 (1st Cir. 1994) ........ 02.0004. 10

FDIC v. Hamilton, 122 F.3d 854 (10th Cir. 1997) ............0.5. 6

Gasperini v. Center for Humanities, Inc.,

SOG UD. GES CORR 0 00 000000 eoseesseenbeneeans 1, 5, 15-18

Gambetta v. Prison Rehabilitative Indus. & Diversified Enters. ,

Day Fil ci) fe Ber ee eee )

Glazer v. Glazer, 374 F.2d 390 (Sth Cir.), cert. denied,

SOD US. SPE COGRT) .. . ccnvccvctesescesuusneccenenseanans 6

Goldhirsh Group v. Alpert, 107 F.3d 105 (2d Cir. 1997) .......... 9

Gore v. United States, 357 U.S. 386 (1958) .............0 2005. 10

Gremmels v. Tandy Corp., 120 F.3d 103 (8th Cir. 1997) .......... 9

Gulf S. Medical & Surgical Inst. v. Aetna Life Ins. Co., 39 F.3d

520 (Sth Cir. 1994), cert. denied, 516 U.S. 814 (1995) ..... 9,10

Harmelin v. Michigan, 501 U.S. 957 (1991) 2.0... 6. ce eee eee 10

Herrera v. Collins, 506 U.S. 390 (1993) ......... cece cece ee eees 8

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994). 0.0... 6.6005. 2, 12

In re Merritt Logan, Inc., 901 F.2d 349 (3d Cir. 1990) .......... 10

In re Wade, 969 F.2d 241 (7th Cir. 1992) .......... cc cee enue 10

Inter Medical Supplies Lid. v. EB] Medical Systems, Inc., \8\

F.3d 446 (3d Cir. 1999), cert. denied, 120 S. Ct. 791 (2000) 15, 16

Jackson v. Virginia, 443 U.S. 307 (1979) .........046. 2, 4, 7, 8, 14

Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259 (8th Cir.),

cont. Ganted,, S13 U.S. SSS CRGe oc 00ccesenssss eee 4

(ii)

CASES: PAGE:

Johansen v. Combustion Engineering, Inc., 170 F.3d 1320

(11th Cir.), cert. denied, 120 S. Ct. 329 (1999) ......... 3, 12,19

Kraus v. Sobel Corrugated Containers, Inc.,

EE 10

Lee v. Edwards, \0\ F.3d 805 (2d Cir. 1996) ..............000.. 5

Leslie v. Doyle, 125 F.3d 1132 (7th Cir. 1997)..........000..... 11

Lewis v. Jeffers, 497 U.S. 764 (1990) 2.2.0... 0 0 ccc cece 10

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986) . 9

Mejias-Quiros v. Maxxam Prop. Corp.,

a pdeeeeces 7

Midland Banana & Tomato Co., Inc. v. United States Dep't of Agric,

104 F.3d 139 (8th Cir.), cert. denied, 522 U.S. 951 (1997) ...... 5

Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340 (1913)......... 11

Pacific Mutual Life Ins. Co. v. Haslip, 400 U.S. 1 (1991)... 2... .. 11

Pierce v. Atchison T. & S.F. Ry., 110 F.3d 431 (7th Cir. 1997) ..... 9

Pitts v. Michael Miller Car Rental, 942 F.2d 1067 (6th Cir. 1991 .. 10

Premier Bank v. Mosbacher, 959 F.2d 562 (Sth Cir. 1992) ....... 10

Rummel v. Estelle, 445 U.S. 263 (1980) ..... 00000000000 eee, 10

Sawyer v. Whitley, 505 U.S. 333 (1992) ...........00.00 000005. 14

Schlup v. Delo, 513 U.S. 298 (1995) .... 6... cece eee 8,14

Smith v. American Nat'l Red Cross, 1992 WL 357850

EEE ee 10

Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir. 2000) ....... 6

Solem v. Helm, 463 U.S. 277 (1983) .. 0... 0 ce ee 10

Solomon Dehydrating Co. v. Guyton, 294 F.2d 439 (8th Cir.),

cert. denied, 369 U.S. 929 (1961) ........... 0c cece eee 6

Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 482 (1915) ... 11

Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp.,

EE ee 8

Strauss v. Stratojac Corp., 8\0 F.2d 679 (7th Cir. 1987) .......... 4

St. Louis, 1. Mt. & So. Ry. Co. v. Williams, 251 U.S. 63 (1919) .... 11

T. Harris Young & Assoc., Inc. v. Marquette Electronics, Inc.,

931 F.2d 816 (11th Cir.), cert. denied, 502 U.S. 1013 (1991)... 10

Taylor v. List, 880 F.2d 1040 (9th Cir. 1989) .................. 10

This is Me, Inc. v. Taylor, 157 F.3d 139 (2d Cir. 1998) ........... a

Thorne v. Welk Inv., 197 F.3d 1205 (8th Cir. 1999) .............. 5

See Oh PUM, Ge GI, DO CODERS ccc cc cccccscccscccccccess 8

Tuohey v. Chicago Park Dist., 148 F.3d 735 (7th Cir. 1998) ....... 4

TXO Production Corp. v. Alliance Resources Corp.,

EE Ee 6. 11

(iii)

CASES: PAGE:

United Phosphorus™Ltd. v. Midland Fumigant, Inc.,

Be ae Ce EE BED cbc dccccedcesccecnccesceess 6

United States v. Angulo-Lopez, 7 F.3d 1506 (10th Cir. 1993),

OE EE, Ss Es EEE Sb ceeccecesccteseseces 11

United States v. Bajakajian, 524 U.S. 321 (1998) ............ 11,13

United States v. Big D Enterprises, Inc., 184 F.3d 924

(8th Cir. 1999), cert. denied, 120 S. Ct. 1419(2000) .......... 5

United States v. DeLuca, 137 F.3d 24 (1st Cir.), cert. denied,

SP cnccndcnsbesesesécdedvecéeveedsanes 11

United States v. Flowal, 163 F.3d 956 (6th Cir. 1998),

cert. denied, 526 U.S. 1093 (1999) ........... 0c cece ee eees 10

United States v. 121 Allen Place, 75 F.3d 118 (2d Cir. 1996) ....... )

United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997),

Ge8, GEE, Te Ces CEE coc eccctedcdvcccccccess 11

Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909) ............ 11

Waymire v. Harris County, 86 F.3d 424 (Sth Cir. 1996) .......... y

Weems v. United States, 217 U.S. 349 (1910) ... 2... 6.6 10

Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998) ............. 10

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES:

ee eee cu eeesoneneenees 17, 18

Judiciary Act of 1789, § 22, 1 Stat. 84-85 .... 2... 6. eee eee 17

PE CECE ccccsceceedécessctoeseusceonneadss 13, 20

MISCELLANEOUS:

Brief of Federal Jurisdiction and Legal History Scholars

Akhil Reed Amar, et al., as Amici Curiae in Support

of Petitioner, in Gasperini v. Center for Humanities,

No. 95-719 (filed March 1, 1996) ......... 640 cece eee eees 17

David G. Knibb, Federal Court of

Appeals Manual (4th ed. 2000) .. 2... 6. ee eee eens 9

Charles Alan Wright, The Doubtful Omniscience of

Appellate Courts, 41 Minn. L. Rev. 751 (1957) ...........5.- 8

Charles Alan Wright, The Overloaded Fifth Circuit: A Crisis in

Judicial Administration, 42 Tex. L. Rev. 949 (1964) .......... 8

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

11 Federal Practice & Procedure: Civil 2d (2d ed. 1995) ...... &

(iv)

INTEREST OF AMICI CURIAE

Amici curiae are law professors with expertise in the fields

of federal jurisdiction, constitutional! law and legal history, both

of whom appeared as amici in the last major case in which this

Court grappled with the proper scope of federal appellate review

of jury damage awards, Gasperini v. Center for Humanities, Inc.,

518 U.S. 415 (1996). Our qualifications are summarized in the

Appendix.’

We have no interest in the outcome of the particular lawsuit

at bar. We file this brief solely to alert the Court to the need to

grant certiorari in this case to resolve the first question presented

in the petition, which addresses the fundamental conflict and

confusion among the federal circuit courts of appeals regarding

the proper scope of appellate review for jury-awarded punitive

damages.

SUMMARY OF ARGUMENT

Petitioner asks this Court to grant review in this case, first

and foremost, to resolve a conflict that exists among the federal

circuit courts of appeals regarding the nature of federal appellate

review of punitive damage awards issued by juries. See Petition

for Certiorari (“Pet.”) at 8-13. Although we differ somewhat

with petitioner on how the circuit conflict is most appropriately

described, the circuit conflict is real and substantial. The

fundamental matter dividing the circuits is whether to apply in

the punitive damages context the standard of appellate review

that has traditionally been used in all other contexts — in both

criminal litigation and civil litigation alike — when one party

argues that the result reached by the jury is not sustainable on the

particular record of the case.

Several circuits, when reviewing attacks on punitive damage

awards for “gross excessiveness,” engage in a de novo review of

' Letters from all parties consenting to the filing of this brief have been

filed with the Clerk. Counsel for a party did not author this brief in whole or

in part. No person or entity, other than amici curiae and their counsel, made

a monetary contribution to the preparation or submission of this brief.

2

whether the amount awarded by the jury is rational on the

particular record. This review standard gives no particular

deference to the district court’s analysis of whether the award is

constitutionally excessive, a matter that is treated as a classic

“legal” issue, determined with the record evidence viewed in the

light most favorable to the jury’s verdict. This approach

comports with the test adopted by this Court for appellate court

review of criminal liability, see, e.g., Jackson v. Virginia, 443

U.S. 307, 317-20, 324 (1979), and its close analogs used in

appellate review of civil liability and of the severity of criminal

and civil penalties. Jackson’s “rational factfinder” approach is

appropriate for appellate review of jury-awarded punitive

damages, as this Court strongly implied in Honda Motor Co. v.

Oberg, 512 U.S. 415, 432 n.10 (1994).

Other circuits, in articulating a standard of review for

punitive damage awards, have departed from this traditional

“rational factfinder” approach. Rather than examining the record

de novo to determine whether the result reached by the jury was

rational, the Eleventh Circuit uses a standard of review that

defers to so-called “factual” findings made by district courts

concerning the level of reprehensibility of the defendant’s

conduct and other key factors bearing on the ultimate legal issue

of gross excessiveness. This approach creates twin risks. One

is the risk of undue interference with rational jury verdicts (as

district courts enjoy leeway to throw out verdicts that would be

found rational on de novo review). The other is the risk of

approval of irrational jury verdicts (as district courts enjoy

leeway to uphold verdicts that would be found irrational on de

novo review).

The Third Circuit has gone the opposite way in its departure

from the traditional standard of de novo review of a jury

verdict’s rationality. The Third Circuit reads this Court’s

precedents as requiring appellate judges to engage in “intensive

review” of punitive damage awards, and to use their own

experience and judgment to ensure that only appropriate awards

are upheld. This expansive review standard violates statutory

3

and constitutional strictures on the scope of federal appellate

review of jury verdicts.

The approach followed by the Ninth Circuit is difficult to

discern with precision. But regardless of how this Court reads

Ninth Circuit law, this Court should grant review in this case to

resolve the conflict among the federal circuit courts of appeals

concerning the proper standard for reviewing federal substantive

due process attacks on jury-awarded punitive damages. The

proper standard of appellate review is an important and

frequently recurring matter that should be addressed and resolved

at the earliest available opportunity.

ARGUMENT

CERTIORARI IS WARRANTED IN LIGHT OF THE

CONFLICT AND CONFUSION AMONG THE FEDERAL

CIRCUIT COURTS OF APPEALS CONCERNING THE

REVIEW OF JURY-AWARDED PUNITIVE DAMAGES

The Eleventh Circuit recently suggested that the issue of the

proper appellate standard of review for federal substantive due

process attacks on jury-awarded punitive damages is an “issue of

first impression” nationally. Johansen v. Combustion

Engineering, Inc., 170 F.3d 1320, 1334 (11th Cir.), cert. denied,

120 S. Ct. 329 (1999). We disagree. Although the precise

standard used by each circuit is difficult to define with precision,

and although some circuits have not specifically addressed this

issue, it is plain that an important circuit conflict exists as to the

standard of review.

The three different approaches are these: (a) under the

approach of several circuits, de novo review of what is termed a

“legal” issue under a “rational factfinder” standard, which we

believe is the correct approach; (b) under the Eleventh Circuit’s

approach, a nominally de novo review framework, coupled with

deferential review of district court “factual” findings; and (c)

under the Third Circuit’s approach, an “intensive review” of the

punitive damage award, conducted with the benefit of the

4

appellate judges’ own experience and judgment concerning what

size award is reasonable. We describe each approach and briefly

summarize why we believe the first approach is the correct one,

and why certiorari is warranted in this case to resolve the issue.

A. Several Circuits Engage in De Novo Review of Whether

the Jury’s Award is Rationally-Supportable on

the Record, Consistent With the Traditional Standard

of Review for Both Criminal and Civil Jury Verdicts

At least four federal circuit courts of appeals — the Second,

Seventh, Eighth and Tenth Circuits — appear to engage in de

novo review of whether the amount of punitive damages awarded

in a particular case is rationally supported by the record evidence,

using a standard akin to the “rational factfinder” standard

articulated in Jackson v. Virginia, 443 U.S. 307, 317-20, 324

(1979), and related cases. Typically, this de novo review is

conducted under an “abuse of discretion” rubric. Review for

“abuse of discretion” is nominally involved because this is the

label traditionally attached to review of a district court’s ruling

on a new trial motion (the device used to challenge the size of a

jury’s damage award). But there is no discretion actually

accorded the district court. Rather, in these circuits,

excessiveness is treated as a “legal” question, decided on the

record with all legitimate factual inferences drawn in favor of the

jury’s result, and a district court perforce abuses its discretion in

upholding a verdict that lacks rational support in the record.

More than a decade ago the Seventh Circuit, in Strauss v.

Stratojac Corp., 810 F.2d 679 (7th Cir. 1987), reiterated settled

precedent that it would find a punitive damage award excessive

on appeal only if there is “‘no rational connection between the

evidence on the damages and the verdict,’” and in that case it

upheld the punitive award on the finding that it did “not seem

irrational.” /d. at 686.

Likewise, the Eighth Circuit, in Jacobs Mfg. Co. v. Sam

Brown Co., 19 F.3d 1259 (8th Cir.), cert. denied, 513 U.S. 989

(1994), indicated that a punitive damage award should not be

5

disturbed based on a gross excessiveness analysis unless the

amount awarded “was so unrealistic that it showed irrational

rather than reasonable jury behavior.” Jd. at 1266 (citation

omitted). The Eighth Circuit reinstated in full the jury’s $2.7

million punitive damage award that the district court had found

excessive, based on the Eighth Circuit’s own conclusion, after a

review of the record, that there was no indication that the award

“could only have resulted from irrational jury behavior.” /d. The

court applied de novo review of the jury’s underlying award,

under a “rational factfinder” standard, and there was no

deference to the district court’s analysis of the amount of the

award. Recently, the Eighth Circuit explicitly held that in

reviewing federal substantive due process challenges to punitive

damage awards, it will “review the district court’s conclusions de

novo.” United States v. Big D Enterprises, Inc., 184 F.3d 924,

932-33 (8th Cir. 1999), cert. denied, 120 S. Ct. 1419 (2000).’

Likewise, in Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996),

the Second Circuit explained that in reviewing a punitive damage

award “for abuse of discretion,” it decides a “question of law”

concerning the “upper limit” supported by the record, to

determine whether the amount of the award is “rational.” /d. at

808-09 (quoting Gasperini v. Center for Humanities, Inc., 518

U.S. 415, 435 (1996), and Vasbinder v. Scott, 976 F.2d 118, 121

(2d Cir. 1992)). It applied this standard to a prison beating case

and held that the maximum punitive damage award supported by

the record was $75,000 (as opposed to the $200,000 awarded by

the jury and upheld by the district court). In doing so, the Second

Circuit decided the federal substantive due process attack on the

2 A case cited in Big D to illustrate the nature of the de novo review

being used, see 184 F.3d at 933, confirms the limited nature of this review.

In that case, Midland Banana & Tomato Co., Inc. v. United States Dep't of

Agric., 104 F.3d 139, 142 (8th Cir.), cert. denied, 522 U.S. 951 (1997), the

Eighth Circuit relied on the rule that “[w]e review federal constitutional

questions de novo.” But see Thorne v. Welk Inv., 197 F.3d 1205, 1211-12

(8th Cir. 1999) (reviewing punitive damage award upheld by district court “for

an abuse of discretion” and finding “no abuse of discretion with regard to the

remitted amount of punitive damages”).

6

verdict based on a de nove review of the inferences supported by

the record, without any deference to the district court’s view of

the record. /d. at 809-13.

Finally, it appears that the Tenth Circuit also applies a de

novo standard of review, under which no deference is owed to

the district court and the sole issue is whether, drawing all

legitimate factual inferences in favor of the jury’s verdict, the

amount of the punitive damage award is irrationally excessive.

In Continental Trend Resources, Inc. v. OXY USA, Inc., 101 F.3d

634, 642-43 (10th Cir. 1996), cert. denied, 520 U.S. 1241 (1997),

the court stated that whether a given award violates federal

substantive due process is “a federal constitutional issue” that is

“one of constitutional fact that the appellate courts have the

power to decide” based on their “review of the record.” See

also Smith v. Ingersoll-Rand Co., 214 F.3d 1235 (10th Cir.

2000); United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205

F.3d 1219, 1228-31 (10th Cir. 2000); FDIC v. Hamilton, 122

F.3d 854, 857, 861-62 (10th Cir. 1997).

The de novo review under a “rational factfinder” standard

employed by these four circuits is, we submit, the correct

approach. “It is a commonplace that a jury verdict must be

reviewed in relation to the record before it.” 7XO Prod. Corp. v.

Alliance Resources Corp., 509 U.S. 443, 469 (1993) (Kennedy,

J., concurring) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

Federal appellate review of jury-awarded damages to ensure that

a particular award is rational on the record of the case is hardly

a novel development. For example, even during the 1960s, when

the existence of any federal appellate authority to review

excessiveness claims was a matter of considerable dispute, see,

e.g., Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 446-48

& n.3 (8th Cir.) (Blackmun, J.), cert. denied, 369 U.S. 929

(1961), the Fifth Circuit emphasized that the function of

appellate review in this context was to decide whether the district

court had abused its discretion in upholding a verdict that was

without rational support on the record. In Glazer v. Glazer, 374

F.2d 390 (Sth Cir.) (Wisdom, J.), cert. denied, 389 U.S. 831

(1967), the court struck down a $1.9 million compensatory award

7

for breach of contract. In doing so, it stated that the district court

had abused its discretion because “[t]he verdict was excessive as

a matter of law in that it exceeds any rational appraisal or

estimate of the damages that could be based upon the evidence

before the jury.” /d. at 413 (emphasis added).°

This “rational factfinder” standard for reviewing the

underlying jury verdict for rationality, with the record viewed in

the light most favorable to the verdict and with no particular

deference to the trial judge, is of course a familiar one. In

criminal litigation it has long been settled that where a defendant

challenges the adequacy of the evidence introduced at trial, the

proper test on appellate review (and on habeas review of state

court proceedings) is whether “a rational factfinder” could have

arrived at the jury’s result under the governing law and facts.

Jackson v. Virginia, 443 U.S. 307, 317-20, 324 (1979).

Jackson's “rational factfinder” test is an objective one that

focuses on the corpus of evidence that was before the jury. It

“does not permit a court to make its own subjective

determination of guilt or innocence,” nor does it concern “how

rationally the verdict was actually reached” based on “scrutiny of

the reasoning process actually used by the factfinder — if

known.” /d. at 319-20 n.13. “This familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts,” thus

3 :

A linkage between the “abuse of discretion” /abel for review of an

order ona motion for a new trial, and the “rational factfinder” substance of

the review of a compensatory damages award, has persisted to this day. See,

e.g., Mejias-Quiros v. Maxxam Prop. Corp., 108 F.3d 425, 427-29 (Ist Cir.

1997) (stating that under Gasperini’s abuse-of-discretion review standard, a

district court’s denial of a new trial on damages will be overturned “only if the

damages awarded lack ‘a rational basis in evidence,"” and concluding that the

$25,900 award for medical expenses “lacked any rational basis” in the record)

(citation omitted), Air Safety, Inc. v. Roman Catholic Archbishop, 94 F.3d 1,

4 (Ist Cir. 1996) (stating that the proper scope of review “is narrow” and that

“an abuse of discretion” cannot be found where “the jury award has a rational

basis in evidence”) (citation omitted).

“imping[ing] upon ‘jury’ discretion only to the extent necessary

to guarantee the fundamental protection of due process of law.”

Id. at 319. The question it poses to a reviewing court is simple.

“Under Jackson, the question whether the trier of fact has power

to make a finding of guilt requires a binary response: Either the

trier of fact has power as a matter of law or it does not.” Schlup

v. Delo, 513 U.S. 298, 330 (1995).*

Jackson involved the review of evidentiary sufficiency to

sustain a criminal conviction. But a close variant of the Jackson

standard has traditionally applied to appellate review of liability

determinations in civil litigation as well. This Court articulated

‘ The “rational factfinder” test plainly does not involve any sort of

weight-of-the-evidence review of the jury’s verdict. In Tibbs v. F lorida, 457

U.S. 31 (1982), the Court stated that the Jackson test “forbids any conviction

based on evidence insufficient to persuade a rational factfinder of guilt beyond

a reasonable doubt,” so that “{t}he Due Process Clause . . . sets a lower limit

on an appellate court's definition of evidentiary sufficiency,” but it

emphasized that “the reviewing court must view ‘the evidence in the light

most favorable to the prosecution.’” /d. at 45 & n.21 (quoting Jackson, 443

U.S. at 319). See also Herrera v. Collins, 506 U.S. 390, 402 (1993) (review

under Jackson “does not focus on whether the trier of fact made the correct”

decision, “but rather whether it made a rational decision”), Burks v. United

States, 437 U.S. 1, 16 (1978) (“Even the trial court, which has heard the

testimony of witnesses firsthand, is not to weigh the evidence or assess the

credibility of witnesses when it judges the merits of « motion for acquittal”).

According litigants the right to appellate weigh\-of-the-evidence would

impose on appellate courts in every case the burden “to examine in some

detail all of the evidence,” rather than simply to confirm that the jury’s result

is supported by “adequate evidence in the record.” Stonewall Ins. Co. v

Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995). This

would duplicate work already competently done by trial judges and inevitably

undermine confidence in trial judges. See Charles Alan Wright, The Doubtful

Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 781-82 (1957). And

by encouraging disappointed litigants to appeal in an effort to re-try the facts,

it would lead to greater docket congestion and less time for attention to serious

issues of law. See Charles Alan Wright, The Overloaded Fifth Circuit: A

Crisis in Judicial Administration, 42 Tex. L. Rev. 949, 967-68 (1964); see

also 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice & Procedure: Civil 2d § 2819, at 204 (2d ed. 1995).

9

the general approach decades ago as follows:

When the evidence is such that without weighing the

credibility of the witnesses there can be but one

reasonable conclusion as to the verdict, the court should

determine the proceeding by non-suit, directed verdict or

otherwise in accordance with the applicable practice

without submission to the jury, or by judgment

notwithstanding the verdict.

Brady v. Southern Ry., 320 U.S. 476, 479-80 (1943). This Court

explicitly introduced Jackson’s “rational factfinder” language

into the summary judgment context in Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), in stating that,

“[wJhere the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no “genuine

issue for trial,” and in emphasizing that the inferences that may

be drawn from the facts must be “‘viewed in the light most

favorable to’” the nonmovant. /d. at 587 (citations omitted). In

civil litigation, the federal appellate courts now routinely refer to

the “rationality” of a finding of liability when they engage in de

novo review of the corpus of record evidence in reviewing

summary judgment and JMOL rulings.’

* See David G. Knibb, Federal Court of Appeals Manual § 30.2, at 526

(4th ed. 2000). An electronic search of decisions in the past decade reveals

that at least ten of the twelve federal circuit courts of appeals employ the

‘rational factfinder” test in their de novo review of summary judgment and/or

JMOL rulings. See, e.g, Doby v. Decrescenzo, 171 F.3d 858, 873-74 (3d Cir.

1999); This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998); Tuohey

v. Chicago Park Dist., 148 F.3d 735, 740 (7th Cir. 1998): Davis v. United

States Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998); Buntin v. Breathitt

County Bd. of Educ., 134 F.3d 796, 800 (6th Cir. 1998); Gremmels v. Tandy

Corp., 120 F.3d 103, 105 (8th Cir. 1997); Gambetta v. Prison Rehabilitative

Indus. & Diversified Enters., Inc., 112 F.3d 1119, 1121 (11th Cir. 1997):

Pierce v. Atchison T & SF. Ry., 110 F.3d 431, 438 (7th Cir. 1997):

Goldhirsh Group, Inc. v. Alpert, 107 F.3d 105, 107-08 (2d Cir. 1997):

Waymire v. Harris County, 86 F.3d 424, 428 (Sth Cir. 1996); United States

v. 121 Allen Place, 75 F.3d 118, 120-21 (2d Cir. 1996); Campbell v. St

Tammany Parish Sch. Bd., 64 F.3d 184, 187 (Sth Cir. 1995): Gulf South

10

The “rational factfinder” standard also appears at the

penalty stage in criminal proceedings. For example, in the

capital punishment context, in deciding whether the record

supports a finding of a particular death-qualifying “aggravating

circumstance,” the “appropriate standard of review is the

‘rational factfinder’ standard established in Jackson.” Lewis v.

Jeffers, 497 U.S. 764, 781 (1990). See also id. at 781-84; Sawyer

v. Whitley, 505 U.S. 333, 339-41, 345-47 & n.14 (1992) (citing

Jackson in reference to the “innocent of death” doctrine in the

context of successive habeas claims).

In a related vein, in reviewing whether particular criminal

sentences are in violation of the Eighth Amendment’s ban on

“cruel and unusual punishments,” this Court treats the issue as

“legal” in nature, reviewable de novo, with no particular

deference to the trial court’s view of the matter. See, e.g.,

Harmelin vy. Michigan, 501 U.S. 957, 961, 985-90, 994-96 (1991)

(opinion of Scalia, J., joined by Rehnquist, C.J.); id. at 996,

1001-08 (opinion of Kennedy, J., joined by O’Connor and

Souter, JJ.); Solem v. Helm, 463 U.S. 277, 283, 290-300, 303

(1983); Rummel v. Estelle, 445 U.S. 263, 275-82 (1980); Gore v.

United States, 357 U.S. 386, 393 (1958); Weems v. United States,

217 U.S. 349, 362-68, 377, 380-82 (1910).° The Court has

Medical & Surgical Inst. v. Aetna Life Ins. Co., 39 F.3d 520, 521 (Sth Cir.

1994), cert. denied, 516 U.S. 814 (1995); Favorito v. Pannell, 27 F.3d 716,

719 (1st Cir. 1994); Alvarez-Crespo v. Olavarria-Rivera, 994 F.2d 35, 36 (ist

Cir. 1993); Smith v. American Nat'l Red Cross, 1992 WL 357850, at *2 (4th

Cir. 1992); In re Wade, 969 F.2d 241, 248 (7th Cir. 1992); Premier Bank v.

Mosbacher., 959 F.2d 562, 566 (Sth Cir. 1992); Pitts v. Michael Miller Car

Rental, 942 F.2d 1067, 1069-70 (6th Cir. 1991); 7. Harris Young & Assocs.,

Inc. v. Marquette Electronics, Inc., 93\ F.2d 816, 821, 828 (11th Cir.), cert.

denied, 302 U.S. 1013 (1991); Kraus v. Sobel Corrugated Containers, Inc.,

915 F.2d 227, 229 (6th Cir. 1990); Jn re Merritt Logan, Inc., 901 F.2d 349,

366 (3d Cir. 1990); Taylor v. List, 880 F.2d 1040, 1044-45 (9th Cir. 1989).

° The federal circuit courts of appeals have understood that the review

of Eighth Amendment challenges is to be conducted de novo. See, e.g.,

United States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998), cert. denied, 526

U.S. 1093 (1999); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998);

adopted a similar review standard with respect to criminal

forfeitures. United States v. Bajakajian, 524 U.S. 321, 336-37 &

n.10 (1998).

In reviewing whether particular instances of civil fines are

constitutionally excessive, this Court has likewise treated the

issue as “legal” in nature and reviewable de novo, with no

particular deference to the views of lower courts or admin-

istrative agencies concerning the ultimate constitutional issue of

excessiveness. See, e.g., St. Louis, 1. Mt. & So. Ry. Co. v.

Williams, 251 U.S. 63, 66-67 (1919); Southwestern Tel. & Tel.

Co. v. Danaher, 238 U.S. 482, 490-91 (1915); Missouri Pacific

Ry. Co. v. Tucker, 230 U.S. 340, 347, 349-51 (1913); Waters-

Pierce Oil Co. v. Texas, 212 U.S. 86, 111-12 (1909).

Finally, the “rational factfinder” standard that is employed by

most of the federal circuit courts of appeals that have articulated

a review standard likewise finds solid support in this Court’s

decisions during the past decade addressing federal substantive

due process challenges to punitive damage awards. In all three

cases, the Court treated the “gross excessiveness” issue as a

“legal” one, reviewable de novo with the record read in the light

most favorable to the jury’s verdict, with no particular deference

to the views of the district court. BMW of North America, Inc. v.

Gore, 517 U.S. 559, 574-86 (1996); TXO Production Corp. v.

Alliance Resources Corp., 509 U.S. 443, 458-62 (1993) (plurality

opinion); Pacific Mutual Life Ins. Co. v. Haslip, 400 U.S. 1, 12,

18-24 (1991). Further, in a decision holding that some degree of

judicial review of the size of punitive damage awards is required

by the Due Process Clause of the Fourteenth Amendment, this

Court strongly implied that Jackson’s “rational factfinder”

approach is the appropriate review standard for “gross

excessiveness” claims. Honda Motor Co. v. Oberg, 512 U.S.

United States v. DeLuca, 137 F.3d 24, 40 n.19 (Ist Cir.), cert. denied, 525

U.S. 874 (1998); Leslie v. Doyle, 125 F.3d 1132, 1134 (7th Cir. 1997); United

States v. Quinn, 123 F.3d 1415, 1425 (1 1th Cir. 1997), cert. denied, 523 U.S.

1012 (1998); United States v. Angulo-Lopez, 7 F.3d 1506, 1509-10 (10th Cir.

1993), cert. denied, 511 U.S. 1041 (1994),

12

415, 432 & n.10 (1994) (citing Jackson, 443 U.S. at 324). See

also Tr. of Oral Argument in Honda Motor Co. v. Oberg, No.

93-644 (Apr. 20, 1994), 1994 U.S. Trans. LEXIS 150, at *13-14

(questioning by Justice O’Connor as to “why should the

constitutionally mandated review be any more than is required

in a criminal case” under “the Jackson standard,” leading

petitioner’s counsel Andrew L. Frey to state: “I have no problem

with that standard. That’s what we would like to see the Court

supply.”).

B. The Eleventh Circuit Improperly Defers to “Factual”

Findings Made by District Courts in Reviewing Jury

Verdicts, Carrying With It the Twin Risks of Undue

Interference With Rational Jury Verdicts, and the

Approval of Irrational Jury Verdicts

By contrast to the several circuits that apply the traditional

“rational factfinder” standard in assessing jury verdict, giving de

novo consideration to whether a punitive damage award is

rationally sustainable on the particular record of the case, the

Eleventh Circuit has adopted a standard that requires, in part,

improper deference to district court findings.

By and large, the Eleventh Circuit appears to follow the

“rational factfinder” approach used by most circuits, treating the

issue of whether a particular punitive damage award violates

federal substantive due process as a “legal” issue subject to de

novo review. The Eleventh Circuit disclaims any “abuse of

discretion” label, thus making clearer than other circuits that, in

general, a de novo review standard applies. Thus, in Johansen v.

Combustion Engineering, Inc., 170 F.3d 1320 (11th Cir.), cert.

denied, 120 S. Ct. 329 (1999), the court stated that under this

Court’s decisions

there is a constitutional limit on a punitive damage award

beyond which neither the jury nor the court has any

discretion to venture. The abuse of discretion standard

is inapplicable where no discretion may be exercised.

13

The ultimate question whether a punitive damage

award is constitutionally excessive is, of course, a legal

issue. We review questions of law de novo.

Id. at 1334.

Up to this point, the Eleventh Circuit's Johansen decision is

straightforward, with the court endorsing de novo review of a

jury verdict awarding punitive damages, conducted through a

review of the underlying record viewed in the light most

favorable to the verdict, without deference to the district court.

But the court then adds a caveat that creates a curious hybrid

standard of review: rather than deferring on factual matters to

the factfinder on the case, that is, the jury, the Eleventh Circuit

defers to the posttrial analysis of the district court that reviewed

the jury’s verdict, “accept[ing] the district court’s findings of fact

unless they are clearly erroneous” within the meaning of Fed. R.

Civ. P. 52(a). Jd.

We are aware of no authority for such a standard of review.

The only case cited by the Eleventh Circuit on this point is this

Court's decision in United States v. Bajakajian, 524 U.S. 321

(1998), in which the Court conducted an excessiveness analysis

of a criminal forfeiture imposed by a district court after a bench

trial and confirmed the basic rule that although excessiveness

determinations are “legal” issues reviewed de novo, the evidence

must be viewed in the light most favorable to the result reached

by the factfinder — there, the district court that conducted the

bench trial and issued Rule 52(a) factual findings. /d. at 336-37

& n.10. We are at a loss to understand how Bajakajian could be

construed to support the proposition that if a district court issues

an opinion on a posttrial motion finding that a jury’s award of

punitive damages violates federal substantive due process, on

appeal there will no longer be “rational factfinder” review of

whether the record before the jury supports the ultimate verdict,

but instead the district court’s opinion will be given the status of

Rule 52(a) findings — thereby rendering irrelevant the fact that

it is a jury verdict, not a bench trial finding, undergoing review.

Cf Sawyer v. Whitley, 505 U.S. 333, 346 n.14 (1992) (rejecting

14

proposed borrowing of Rule 52(a) standard in another context

involving review of jury verdicts).

Apart from the conceptual inappropriateness of the Eleventh

Circuit’s mixing of two separate appellate review standards —

that used to assess the rationality of a jury’s verdict, and that

used to assess the validity of explicit factual findings made at the

conclusion of a bench trial — this approach creates twin risks of

aberrant results. Under the “rational factfinder” review standard

used by most circuits, either the jury’s punitive damage award is

rational, in which case it is upheld, or it is not rational, in which

case it is struck down. Cf. Schlup v. Delo, 513 U.S. 298, 330

(1995) (stating that under the Jackson test, the question of

whether the jury’s verdict could have been reached by a rational

factfinder “requires a binary response”). Under this approach,

there is no risk of undue interference with jury verdicts (as only

irrational jury verdicts are struck down) and no risk of the

approval of irrational jury verdicts (as all irrational jury verdicts

are struck down).’

The Eleventh Circuit’s approach creates a risk of approval of

irrational jury verdicts: even where the appellate court on de

” We hasten to add that this de novo standard of review, which ensures

that all irrational verdicts are struck down on federal substantive due process

grounds, but that no rational verdicts are struck down on such grounds, is

relevant in only a tiny percentage of cases, and that this standard does not

place trial judges in a legal straightjacket. The vast bulk of jury verdicts raise

no colorable excessiveness concern. Further, as a practical matter, most

verdicts that are constitutionally problematic are reduced by trial judges in the

exercise of an entirely different source of power to control aberrant verdicts.

Throughout our nation’s history, federal trial judges have enjoyed broad

authority to grant new trials, both as to liability and damages, through the

exercise of their power to sit as the “thirteenth juror,” weighing the evidence

to decide whether a new trial is in the interests of justice. As we and others

have argued at length elsewhere, this power of the trial judge to alter jury

verdicts based on a weight-of-the-evidence analysis is exclusive to trial judges

and is effectively immune from control by appellate courts. See Brief of

Federal Jurisdiction and Legal History Scholars Akhil Reed Amar, et al., as

Amici Curiae in Support of Petitioner, in Gasperini v. Center for Humanities,

No. 95-719 (filed March 1, 1996) (hereinafter “Gasperini Amicus Br.”).

15

novo review would conclude that the result reached by the jury

is irrational and hence in violation of federal substantive due

process, the verdict can nonetheless be upheld on the basis of

factual findings made by the district court, to which the appellate

court will defer. This approach also creates the opposite risk of

undue interference with rational jury verdicts: even where the

appellate court on de novo review would conclude that the result

reached by the jury is rational, the district court can make factual

findings striking down the verdict, to which the appellate court

will also defer. We see no basis for the hybrid review standard

created by the Eleventh Circuit, and the use of the standard raises

troublesome concerns of practicality and fairness that merit

consideration in the context of the instant case. (The petition for

certiorari in Johansen, which this Court denied, raised no

standard-of-review issue.)

C. The Third Circuit Improperly Employs “Intensive

Review,” in Violation of Both Statutory and

Seventh Amendment Strictures on the Scope of

Federal Appellate Review of Jury Verdicts

The appellate review standard applied by the Third Circuit is

even more aberrant and in conflict with fundamental strictures on

the scope of appellate review than is the Eleventh Circuit's

approach. The Third Circuit’s leading case is /nter Medical

Supplies, Lid. v. EBI Medical Systems, Inc., 181 F.3d 446 (3d

Cir. 1999), cert. denied, 120 S. Ct. 791 (2000). Unlike most

circuits, which defer to juries under the “rational factfinder”

standard, and unlike the Eleventh Circuit, which also defers to

district courts on factual aspects of posttrial rulings that are not

clearly erroneous, the Third Circuit exhibits little if any

deference to either the jury or the district court in evaluating

federal substantive due process attacks on jury-awarded punitive

damages.

As the Third Circuit announced in /nter Medical Supplies, it

has taken on what it terms a “challenging” role: “The role of

gatekeeper” over sizable punitive damage awards. /d. at 450. In

16

its view, this “is not an enviable task,” and it has “searched

vainly in the case law for a formula” with which to pass on such

attacks but has “not found one.” /d. at 468. Making no reference

to the traditional “rational factfinder” standard of review, the

Third Circuit appears to engage in some version of weight-of-the-

evidence review (see note 4, supra) whose results vary

depending on the composition of the panel that hears a case. In

deciding the upper limit of punitive damages in a case, each

Third Circuit panel “must rely on its combined experience and

judgment” and, when its members disagree, “they must seek an

accommodation among their views” concerning what is “the

proper, reasonable punitive damages award.” /d. Such

“intensive review” of punitive damage awards, the Third Circuit

believes, is required by this Court’s jurisprudence. /d. at 470.

Using this “intensive review” standard, two members of the /nter

Medical Supplies panel reduced a punitive damage award in an

intentional tort case by 98%, from $50 million to $1 million, a

tiny fraction of the $48 million in compensatory damages upheld

by the Third Circuit. /d. at 460-61, 463, 467-69. The dissenting

judge, arguing that the majority’s reduction had “no principled

basis,” and that the majority was using an inappropriate review

standard, would have upheld the $50 million punitive award. /d.

at 471-72 (Garth, J., dissenting).

The Third Circuit’s review standard violates fundamental

strictures on the scope of federal appellate review of jury

verdicts. Instead of limiting itself to a review of whether the

jury’s damage award is rational on the record of the case, the

Third Circuit appears to engage in weight-of-the-evidence review

of the factual issue of what is the “proper” or “reasonable”

amount of punitive damages in a particular case. As we and

others explained in an amicus brief filed in Gasperini v. Center

for Humanities, Inc., 518 U.S. 415 (1996), this form of federal

appellate review is entirely improper. See Gasperini Amicus Br.,

supra note 7. Appellate weight-of-the-evidence or de novo

review of factual issues has been barred by statute since the

enactment of the Judiciary Act of 1789, § 22, 1 Stat. 84-85, to the

present day, id. at 22-24, a statutory structure which is both

17

compatible with basic fairness to litigants and which promotes

efficiency. /d. at 24-30. Even more fundamentally, this sort of

“intensive review” practiced by the Third Circuit has been barred

by the Re-Examination Clause of the Seventh Amendment since

the enactment of the Bill of Rights in 1791. /d. at 4-21. As we

have argued previously:

This Court has repeatedly held that the question of

the adequacy of the evidence to support a damage award

is “purely a question of fact,” not a legal issue. Weight-

of-the-evidence review simply gives an appellate court

the opportunity to substitute its view of the evidence for

that of the jury, not to correct any kind of defect in the

proceeding. By definition, the award is one that a

rational jury could reasonably have imposed; its only

“flaw” is that a federal appellate court disagrees with it.

Id. at 19 (quoting Metropolitan R.R. v. Moore, 121 U.S. 558, 574

(1887), and citing St. Louis, Iron Mountain & S. Ry. v. Craft, 237

U.S. 648, 661 (1915)).

In Gasperini, the Members of this Court disagreed over

whether the constraints of a New York tort-reform statute

governing damages could reasonably be construed as imposing

a substantive legal limit on damages (that is, although not a

preset cap, what amounted to a “soft cap” dependent in part on

the facts of the case) that could be applied by the district court,

followed by appellate review for “legal” error under an abuse-of-

discretion standard. But as we read the Gasperini opinions, no

Member of the Court disputed that the Seventh Amendment bars

a federal appellate court from engaging in weight-of-the-evidence

review. The dispute in Gasperini was simply over whether the

New York statute should be viewed by federal district courts as

imposing a “soft cap,” with federal appellate courts properly

policing the outer boundaries of district court rulings applying

this cap, or whether instead such a framework for review would

invariably draw federal appellate courts into the prohibited

enterprise of engaging in weight-of-the-evidence second guessing

of jury verdicts. See Gasperini, 518 U.S. at 434-38 (opinion of

the Court) (viewing New York statute as imposing substantive

cap, applicable in district court and therefore reviewable on

appeal); id at 442-47 (Stevens, J., dissenting) (viewing New York

statute as prescribing “an objective, legal limitation on damages

with the district court’s analysis and therefore reviewable on

appeal as a matter of law); id. at 448-50, 460-469 (Scalia, J .

joined by Rehnquist, C.J., and Thomas, J., dissenting) (viewing

any appellate application of the New York statute as requiring

weight-of-the-evidence review that is prohibited by the Seventh

Amendment).

Under Gasperini, we submit, the invalidity under the Seventh

Amendment of the “intensive review” standard used by the Third

Circuit is clear. By contrast, it would appear (especially in light

of Gasperini) that the “rational factfinder” standard of review for

punitive damages followed by most circuits is compatible with

the Seventh Amendment. Thus, in our amicus brief in Gasperini

we confined our argument to a demonstration of the

impermissibility of any weight-of-the-evidence review in civil

cases by federal appellate courts, raising no question as to

“whether federal appellate courts have the power to review the

arguably legal question of a damage award’s compliance with the

substantive due process ‘reasonableness’ standard.” Gasperini

Amicus Br. at 20 & n.19 (citing Honda Motor Co. v. Oberg, 512

U.S. 415, 432 n.10 (1994), and Southern Ry. v. Bennett, 233 US.

80, 87 (1914) (Holmes, J.)).

D. Although the Approach of the Ninth Circuit is

Not Entirely Clear, This Case is an Appropriate

Vehicle for Review of the Circuit Court Conflict

The approach followed by the Ninth Circuit at present seems

unclear. See Pet. at 9-10 & n.8; Pet. App. at 3a-4a. In the

briefing below, the attack of petitioner Cooper Industries, Inc., on

the award of punitive damages was premised on the argument

that a de novo review standard applied. Opening Brief of

Appellant filed August 3, 1998, at 2-3, 59-63. Respondent

19

Leatherman Tool Group, Inc., took the position that an abuse-of-

discretion standard applied, and argued that the district court had

not abused its discretion in upholding the jury’s award of $4.5

million in punitive damages. Brief of Appellee Leatherman Too!

Group, Inc., filed Sept. 1, 1998, at 3,5,57-65. The Ninth

Circuit applied an abuse-of-discretion review standard,

specifically holding that “the district court did not abuse its

discretion in declining to reduce the amount of punitive

damages.” Pet. App. at 4a. The analysis set forth by the Ninth

Circuit in support of this holding, especially in light of its

cursory nature, suggests that its standard of review is akin to the

deferential standard used by the Eleventh Circuit. There is little

if any indication that the Ninth Circuit panel in this case

approached the excessiveness issue as do the Second, Seventh,

Eighth and Tenth Circuits: by conducting a de novo review of

the record to determine whether a rational factfinder could have

reached the result that was reached by the jury, based on the

evidence and instructions that it was given.

Rather, it appears that the Ninth Circuit simply deferred to

the result reached by the district court, under a standard that

gives district courts even more discretion to rule as they please

than that set out by the Eleventh Circuit in Johansen (which at

least made clear that a district court’s ruling on the ultimate issue

of gross excessiveness involves a legal determination, subject to

de novo review). For example, the only two sentences of the

Ninth Circuit's decision that squarely address the size of the

punitive damage award focus on the “findings” of the district

court “that the punitive damage award was proportional and fair,

given the nature of the conduct, the evidence of intentional

passing off, and the size of an award necessary to create

deterrence to an entity of Cooper's size and assets,” findings that

the Ninth Circuit held “were supported by the evidence, such that

the award did not violate Cooper's due process rights.” Pet App.

at 3a.

We do not claim that the matter is free from doubt, and it

seems at least conceivable that in spite of this language in the

decision below, the Ninth Circuit in fact has a practice, though

20

one not clearly articulated, of conducting “rational factfinder”

review of punitive damage awards, albeit under the rubric of an

“abuse of discretion” label. After all, other circuits use an “abuse

of discretion” label while in substance reviewing under a

“rational factfinder” standard. But regardless of the proper

reading of the decision below, it seems clear that there currently

exists an important conflict among the federal circuit courts of

appeals over what, precisely, an appellate judge is to decide in

passing upon a claim that a jury-rendered punitive damage award

is grossly excessive. In some circuits, appellate judges ask

whether a rational factfinder could have rendered the award on

the record and instructions given the jury. In the Eleventh

Circuit, appellate judges ask this question but also defei to any

factual “findings” made by thé district judge on the post-trial

motions, treating them like. Rule 52(a) findings made at the

conclusion of a bench trial. In the Third Circuit, appellate judges

give little if any deference to the jury or the trial judge, and

instead engage in “intensive review” of punitive damage awards.

Whatever is the correct approach, and whatever approach the

Ninth Circuit uses, this Court should grant certiorari to ensure

that a consistent approach is used nationwide.

CONCLUSION

This Court should grant the petition for certiorari to resolve

the important conflict in the circuits over the proper standard of

review for federal substantive due process atlacks om jury-

awarded punitive damages.

Respectfully submitted.

ERWIN CHEMERINSKY ARTHUR F. McEvoy

699 Exposition Blvd. 975 Bascom Mall

Los Angeles, CA 90089 Madison. WI 53706

(213) 740-2539 (608) 265-4771

KENNETH CHESEBRO*

1600 Massachusetts Avenue

Cambridge. MA 02138

(617) 661-4423

Counse! for Amici Curiae

* Counsel of Record

August 3, 2000

ee eta ret te Ott bes

APPENDIX

QUALIFICATIONS OF AMICI CURIAE

Erwin Chemerinsky is the Legion Lex Professor of Law

at the University of Southern California Law Center, where he

teaches federal courts, civil procedure, and constitutional law.

His publications include Constitutional Law: Principles and

Policies (Little, Brown & Co., 1997); Federal Jurisdiction

(Little, Brown & Co., 2d ed. 1994) and I/nterpreting the

Constitution (Praeger, 1987), as well as numerous articles in law

reviews and other scholarly journals.

Arthur F. McEvoy III holds a joint appointment as

Professor of Law and Professor of History at the University of

Wisconsin, Madison, and has published extensively in the fields

of American history and American legal history. He was a

professor of history at Northwestern University from 1980 to

1993, and a Research Fellow at the American Bar Foundation

from 1989 to 1994. He has a particular interest in the history of

judicial review of jury verdicts in the United States, and was lead

counsel on an amicus brief filed by legal historians on that issue

that was cited by this Court in Honda Motor Co. v. Oberg, 512

U.S. 415, 422 n.2 (1994).