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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 424

## Text

TA MN / 6 20 v | ee epreme © wt. US !

No. 99-2035 |

IN THE |

Supreme Court of the Ciuted States |

= Ss eel -

4

COOPER INDUSTRIES, INC..

Petitioner,

LEATHERMAN TOOL GROUP. INC..
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUTT

BRIEF OF ARTHUR F. McEVOY AS AMICUS
CURIAE IN SUPPORT OF RESPONDENT

ARrHtcrR F. MCEVoY KENNETH CHESEBRO*

975 Bascom Mali 1600 Massachusetts Avenue
Mac: WI 53706 No. 80!
(608) 265-477] Cambridge, MA 02138
(617) 661-4423
Counsel for Amicus Curiae
*Counsel of Record
January 16, 2001
SSA SE S

BATOMAN & SLADE, INC

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the federal appellate courts should apply in
the punitive damages context the standard of appellate review
that traditionally has been used in both criminal and civil
litigation when one party argues that the result reached by the
jury is not sustainable under the relevant law on the particular
record of the case: the “rational factfinder” standard.

TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE 2... wc ccc ec cccccccneces l
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I. THE “RATIONAL FACTFINDER” STANDARD IS THE
PROPER STANDARD FOR APPELLATE REVIEW OF
WHETHER A JURY’S PUNITIVE DAMAGE AWARD
VIOLATES FEDERAL SUBSTANTIVE DUE PROCESS .. 3

A. The “Rational Factfinder” Standard Is the Tool
Traditionally Used by Appellate Courts to Ensure
That Jury Verdicts Comply With Substantive Law .... 4

B. The “Rational Factfinder” Standard is Easily
Administrable in the Punitive Damages Context ..... 13

C. Due Process is More Than Satisfied By Appellate
Review of Whether a Jury’s Verdict is Rationally
Supported on the Record Under Substantive Law .... 16

Il. ANY FEDERAL APPELLATE REVIEW OF JURY
FACTFINDING LESS DEFERENTIAL THAN THE
“RATIONAL FACTFINDER” STANDARD IS
CONSTITUTIONALLY AND STATUTORILY BARRED 18

DEE SE sUGeb eu csececescecescocccccccccccece 22

TABLE OF AUTHORITIES

CASES: PAGE:
Abernathy v. Superior Hardwoods, Inc.,

Fee BED oe icccdsverecccvccccccoescuess 6
Abney v. United States, 431 U.S. 651 (1977) «2... 6. ce eee ee ees 16
Air Safety, Inc. v. Roman Catholic Archbishop,

Re CG SED cawenconansdecuccccescncsgbeccs 11
Alvarez-Crespol v. Olavarria-Rivera, 994 F.2d 35 (ist Cir. 1993) ... 8
Anthony v. G.M.D. Airline Servs., 17 F.3d 490 (ist Cir. 1994) ..... 11
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) ... passim
Brady v. Southern Ry., 320 U.S. 476 (1943) «0.0.6. c cece eee ees 7
Buntin v. Breathitt County Bd. of Educ.,

EE, MED a va wncccccccocccescnscesesesi 8
Burks v. United States, 437 U.S. 1 (1978) ............5. pen eeet 18
Campbell v. St. Tammany Parish Sch. Bd.,

Se IEEE, SEED nicicncicccscncccccccenscesscess 8
Carroll v. United States, 354 U.S. 394 (1957) «2.0... ce ce cee es 17
Conner v. Schrader-Bridgeport Int'l, Inc.,

ee SEED oo vcucccecccunescencosecsiss 1]
Continental Trend Resources, inc. v. OXY USA, Inc., 101 F.3d 634

(i0th Cir. 1996), cert. denied, 520 U.S. 1241 (1997) ........... 3

Davis v. United States Postal Serv., 142 F.3d 1334 (10m Cir, 1998) . 8
Diaz v. Fort Wayne Foundry Corp., 131 F.3d 711 (7th Cir. 1997) .. 11
Doby v. Decrescenzo, 171 F.3d 858 (3d Cir. 1999) ............... 8
Favorito v. Pannell, 27 F.3d 716 (1st Cir. 1994) ............0405. 8
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) . 14
Fredenburg v. Contra Costa County Dep’? of Health Servs.,

Ee Pe NEED oc ccc ccbewcssuebendinn ine 8
Gasperini v. Center for Humanities, Inc., 518\U. S. 415 (1996) . passim
Gambetta v. Prison Rehabilitative Indus. & — Enters.,

112 F.3d 1119 (11th Cir. 1997) . ee
Glazer v. Glazer, 374 F.2d 390 (Sth Cir. ), ourt deed,

nc ciccctencnsccsunuss danse 94 0é0 shi 10
Goldhirsh Group v. Alpert, 107 F.3d 105 (2d Cir. 1997) ........... 8
Gore v. United States, 357 U.S. 386 (1958)... 6. ew cece ee 9
Gremmels v. Tandy Corp., 120 F.3d 103 (8th Cir. 1997) .......... 8
Gulf S. Medical & Surgical Inst. v. Aetna Life Ins. Co., 39 F.3d

520 (Sth Cir. 1994), cert. denied, 516 U.S. 814(1995) ........ 8
Harmelin v. Michigan, 501 U.S. 957 (1991)... 22. ee ce eee 9

(iv)

CASES: PAGE:
Herrera v. Collins, 506 U.S. 390 (1993) ...........00 cc cuee 18, 19
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994). ......... 1, 12, 17
In re Hamel, 629 A.2d 802 (N.H. 1993) .............00 ce ceeee 17
In re Merritt Logan, Inc., 901 F.2d 349 (3d Cir. 1990) ............ 8
In re Wade, 969 F.2d 241 (7th Cir. 1992) .......... 0.0.2 cee euee 8

Inter Medical Supplies Ltd. v. EB] Medical Systems, Inc., 181
F.3d 446 (3d Cir. 1999), cert. denied, 120 S. Ct. 791 (2000) .. 4, 18

Jackson v. Virginia, 443 U.S. 307 (1979) ............0455. passim
Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259 (8th Cir.),

GEE, GE Se PEED occ ccccercccccseccccccces 3
Johansen v. Combustion Engineering, Inc., 170 F.3d 1320

(1 Ith Cir.), cert. denied, 120 S. Ct. 329 (1999) ............. 3,4
Kasper v. St. Mary of Nazareth Hosp.,

as ici cccdcessocsbedaseees 6
Kraus v. Sobel Corrugated Containers, Inc.,

aie cs chk ccccccesuscevecesees 8
Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996) ...............05.. 3
Leslie v. Doyle, 125 F.3d 1132 (7th Cir. 1997) .................. 9
Lannie uv. Fagare, GOT UB. TOO (ISIE) . oc cc cccccccccccsccccwces

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986) . 7
McNabola v. Chicago Transit Auth., 10 F.3d 501 (7th Cir. 1993) ... 11

Mejias-Quiros v. Maxxam Prop. Corp.,

EE SED Sev wsonccccccoeseccecene: —
Missouri Pacific Ry. Co. v. Tucker, 230 U.S. 340 (1913) ..... .. 10
Outboard Marine Corp. v. Babcock Indus.,

aE a on oo cannes iss inewen 2, 6
Pacific Mutual Life Ins. Co. v. Haslip, 400 U.S. 1 (1991) ......... 12
Pals v. Schepel Buick & GMC Truck, Inc.,

s+ t.cccebedeuntibidemhees os 8
Pierce v. Atchison T. & S.F. Ry., 110 F.3d 431 (7th Cir, = .8
Pitts v. Michael Miller Car Rental, 942 F.2d 1067 (6th Cir. 1991 .... 8
Premier Bank v. Mosbacher, 959 F.2d 562 (Sth Cir. 1992) ......... 8
Reeves v. Sanderson Plumbing Products, Inc..,

nt. cid 6 ennkeehuopeeengeceesccoed 7
Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988) ........ 8
Rummel v. Estelle, 445 U.S. 263 (1980) ...........0.. 2.06 e cen 4
Sawyer v. Whitley, 50S U.S. 333 (1992) .... 2.6... cee cece eee 3,9
eer 7
Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994),

SS CUED oc ccc cccesscccccsscecees 8

(v)

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

is die aee nce badan eee new s'ge bodes aksee 8
Smith v. Kmart Corp., 177 F.3d 19 (1st Cir. 1999) .............. 1]
EE 9
Solomon Dehydrating Co. v. Guyton, 294 F.2d 439 (8th Cir.),

CE EB es SEED oc ccccccccccccoccccccces 10
Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 482 (1915) .... 10
State v. Cooper, 498 A.2d 1209 (N.H. 1985) ...............005. 17
State v. Rogers, 434 S.E.2d 402 (W. Va. 1993) ................. 17
Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp.,

i EE ie I Re a 20
Strauss v. Stratojac Corp., 810 F.2d 679 (7th Cir. 1987) ........... 3
St. Louis, I. Mt. & So. Ry. Co. v. Williams, 251 U.S. 63 (1919) ..... 10

T. Harris Young & Assoc., Inc. v. Marquette Electronics, Inc.,
931 F.2d 816 (11th Cir.), cert. denied, 502 U.S. 1013 (1991) .... 8

Taylor v. List, 880 F.2d 1040 (9th Cir. 1989).................... 8
This is Me, Inc. v. Taylor, 157 F.3d 139 (2d Cir. 1998) ............ 8
Thomas v. Texas Dep't of Crim. Justice,

scot b ecb ecesecevccesesensees 8
Fibee v. Piavride, 457 U.S. 31 GHREE) . 0 occ ccc cccccccccccess 18
Transcraft, Inc. v. Galvin, Stalmack, Kirschner & Clark,

cc. cunccbneghedeesééeccesscees 8
Tuf Racing Products, Inc. v. American Suzuki Motor Corp.,

ec cncivnssebeseeceveccecses 6
Tull v. United States, 481 U.S. 412 (1987) ..............202005- 14
Tuohey v. Chicago Park Dist., 148 F.3d 735 (7th Cir. 1998) ........ 8
TXO Production Corp. v. Alliance Resources Corp.,

ET ERS OE 5,12
United States v. Angulo-Lopez, 7 F.3d 1506 (10th Cir. 1993),

cert. denied, 511 U.S. 1041 (1994) ............ ccc cece ewes 9
United States v. Bajakajian, 524 U.S. 321 (1998) ................ 9
United States v. DeLuca, 137 F.3d 24 (ist Cir.), cert. denied,

Es GPs cnnduinndediidenschgtcceescesecccece 9
United States v. Flowal, 163 F.3d 956 (6th Cir. 1998),

Ce ee I oe coc cccsecccccscccccces 9
United States v. 12! Allen Place, 75 F.3d 118 (2d Cir. 1996) ....... 8
United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997),

SS PED oc cccccccccccccccccceces 9
Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909) ............. 10

(vi)

5

CASES: PAGE:
Waymire v. Harris County, 86 F.3d 424 (Sth Cir. 1996)........... 8
Weems v. United States, 217 U.S. 349 (1910) ...........200000ee 9
Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998) .............. 9

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES:

nn «i ccecinanenshaakbesesesasenseve 20, 21
6 nnn a od eee deeedeesedeenendd 12
Judiciary Act of 1789, 1 Stat. 84 (1789) ......... 0. cece eee 17
i Po. ci dde swetenced ébedaaseeskussasunened 3
MISCELLANEOUS:

Brief Amici Curiae for the American Council of Life Insurance,

et al., in Honda Motor Co. v. Oberg,

No. 93-644 (filed Feb. 28, 1994) ..........cceccccecees 12, 13
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) ............eceeeee- passim
Brief of Respondent in Honda Motor Co. v. Oberg,
Pe, Se BOOED cccceccvcccccccceccess 17, 18

Kevin M. Clermont, Procedure’s Magical Number Three:
Psychological Bases for Standards of Decision,
Fe, CORNED Cc cc ccceccesreccccevescces 18
Joint Opening Brief of Appellants Exxon Corporation and Exxon
Shipping Company in Baker v. Exxon Corporation,
9th Cir. No. 97-35191 (filed June 30, 1997) ............. 15, 16
Joint Reply Brief of Appellants Exxon Corporation and Exxon
Shipping Company in Baker v. Exxon Corporation,

9th Cir. No. 97-35191 (filed October 16, 1997)........... 15,16
Colleen P. Murphy, Judicial Assessment of Legal Remedies,

FO I HE 0 hc cccccccvcessccccsccocccs 14
Charles Warren, New Light on the History of the Federal

Judiciary Act of 1789, 37 Harv. L. Rev. 49(1923) ........... 17
Charles Alan Wright, The Doubtful Omniscience of

Appellate Courts, 41 Minn. L. Rev. 751 (1957) .............. 20
Charles Alan Wright, The Overloaded Fifth Circuit: A Crisis in

Judicial Administration, 42 Tex. L. Rev. 949 (1964).......... 20
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

11 Federal Practice & Procedure: Civil 2d (2d ed. 1995) ...... 20

(wit)

INTEREST OF AMICUS CURIAE

Amicus curiae, Arthur F. McEvoy, is a law professor who
appeared as an amicus 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). He served as lead counsel on an amicus brief
cited by this Court in Honda Motor Co. v. Oberg, 512 U.S. 415,
422 n.2 (1994). His qualifications are listed in the Appendix. '

Amicus filed a brief at the certiorari stage of this case urging
review of the conflict among the federal circuit courts of appeals
regarding the proper scope of appellate review for jury-awarded
punitive damages. That brief framed the question presented as
“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.” Brief of Erwin
Chemerinsky and Arthur F. McEvoy as Amici Curiae in Support
of Petitioner, filed Aug. 3, 2000 (“Cert. Amicus Br.”), at 1.

In particular, amicus argued that in reviewing substantive due
process attacks on jury-awarded punitive damages, federal
appellate courts should apply the “rational factfinder” standard
set out in Jackson v. Virginia, 443 U.S. 307, 317-20, 324 (1979),
drawing all reasonable inferences in favor of the jury’s verdict,
but affording no deference to the district court’s analysis of the
matter. He demonstrated that this standard has been consistently
employed by this Court and the lower federal courts to measure
a jury verdict’s conformity with applicable law not simply
concerning criminal liability (at issue in Jackson), but also
concerning civil liability and civil damages and penalties,
including compensatory damages and punitive damages. Cert.
Amicus Br. at 4-12.

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 amicus curiae and his counsel, made
a monetary contribution to the preparation or submission of this brief.

2

This position has been criticized in the brief of petitioner
Cooper Industries, Inc. (“Cooper”), and in two amicus briefs filed
in support of Cooper submitted by counsel who represented the
defendants in the last three punitive damages cases heard by this
Court. See Pet. Br. at 26 & n.20; Brief for the Chamber of
Commerce of the United States of America as Amicus Curiae in
Support of Petitioner (“Chamber of Commerce Br.”) (submitted
by Andrew L. Frey) at 9-21; Brief of Amicus Curiae The
Association of American Railroads in Support of Petitioner
“(Railroads Br.”) at 24-27 (submitted by Carter G. Phillips).
This brief answers those criticisms.

In the view of amicus, due process is fully satisfied, and the
distinct roles of the trial judge and appellate judge in reviewing
jury verdicts are appropriately respected, by adherence in the
punitive damages context to the “rational factfinder” standard
that is traditionally used on appeal when the loser of a jury trial
argues that the result reached by the jury violates applicable law.
On a substantive due process challenge to a punitive damage
award such as that made by Cooper in this case, appellate judges
should leave evaluation of the weight of the evidence to the jury
and trial judge. Thus, an appellate attack on the size of any jury
verdict should be evaluated using an objective, “bottom-line test”
under which “the verdict is evaluated against the evidence” to
determine if it is “rational.” Outboard Marine Corp. v. Babcock
Indus., Inc., 106 F.3d 182, 186 (7th Cir. 1997) (Posner, C.J.).
This test is used by most federal appellate courts that have
addressed the issue, see Cert. Amicus Br. at 4-6, as Cooper and
its amici have not disputed.

Any other course would seriously disrupt the existing
framework for federal judicial review of jury verdicts. In
particular, granting the request for appellate scrutiny of jury
verdicts that is more intrusive than the “rational factfinder”
standard would engage the federal appellate courts in weight-of-
the-evidence review of jury verdicts that is forbidden by the
Seventh Amendment, that has never been authorized by
Congress, and that would be enormously inefficient.

)
|

a cen - 2 ~

3
ARGUMENT

I. THE “RATIONAL FACTFINDER” STANDARD IS THE
PROPER STANDARD FOR APPELLATE REVIEW OF
WHETHER A JURY’S PUNITIVE DAMAGE AWARD
VIOLATES FEDERAL SUBSTANTIVE DUE PROCESS

At the certiorari stage, amicus noted that the federal circuit
courts of appeals have articulated three different approaches to
the appellate review standard for a substantive due process
objection to a punitive damage award. Six circuits appear to
have specifically addressed this issue. Four of the circuits use a
standard akin to the “rational factfinder” standard articulated in
Jackson v. Virginia, 443 U.S. 307, 317-20, 324 (1979), asking
whether the amount of the award is rationally supportable on the
record, See Cert. Amicus Br. at 4-6 (citing Strauss v. Stratojac
Corp., 810 F.2d 679, 686 (7th Cir. 1987); Jacobs Mfg. Co. v.
Sam Brown Co., 19 F.3d 1259, 1266 (8th Cir.), cert. denied, 513
U.S. 989 (1994); Lee v. Edwards, 101 F.3d 805, 808-13 (2d Cir.
1996); Continental Trend Resources, Inc. v. OXY USA, Inc., 101
F.3d 634, 642-43 (10th Cir. 1996), cert. denied, 520 U.S. 1241
(1997)). This is the view that amicus defends.

Another approach, adopted solely by the Eleventh Circuit,
involves a curious hybrid review standard. It combines the
Jackson “rational factfinder” test with deference to any findings
made by the district court on posttrial review of the substantive
due process issue. Any such findings are treated as if they had
been made in a bench trial, so that they are reversible on appeal
only if found “clearly erroneous” within the meaning of Fed. R.
Civ. P. 52(a). Johansen v. Combustion Engineering, Inc., 170
F.3d 1320, 1334 (11th Cir.), cert. denied, 120 S. Ct. 329 (199%).
As amicus has pointed out, see Cert. Amicus Br. at 13-15, this
hybrid review standard is conceptually inappropriate, and this
Court has rejected a proposed borrowing of the Rule 52(a)
standard in another context involving review of jury verdicts.
Sawyer v. Whitley, 505 U.S. 333, 346 n.14 (1992). This standard
is also pragmatically indefensible, risking both erroneous
approval of irrational jury verdicts and undue interference with

4

rational jury verdicts. Neither Cooper nor its amici answer these
objections, or advocate the Eleventh Circuit’s approach; indeed,
Johansen is not even cited in Cooper’s brief.

Instead, the alternative to Jackson’s “rational factfinder”
standard being urged on this Court is the third approach followed
in the lower federal courts: the approach recently adopted by the
Third Circuit in Jnter Medical Supplies, Ltd. v. EBI Medical
Systems, Inc., 181 F.3d 446 (3d Cir. 1999), cert. denied, 120 S.
Ct. 791 (2000). Under this approach, federal appellate judges
play “(t]he role of gatekeeper” over sizable punitive damage
awards and decide what is “the proper, reasonable, punitive
damages award” with little if any deference to the jury or the
district judge. /d. at 450, 468. See also Cert. Amicus Br. at 15-
16. Cooper and several of its amici advance this approach.’
Their arguments are flawed in several key respects.

A. The “Rational Factfinder” Standard Is the Tool
Traditionally Used by Appellate Courts to Ensure
That Jury Verdicts Comply With Substantive Law

Cooper and its amici contend that the “rational factfinder”
standard is utterly inapposite in a case such as this, involving

2 Two of the ten amicus briefs filed in support of Cooper discuss in
passing the review standard set out in Johansen, but neither brief addresses
the two basic objections of amicus to Johansen that were set out at the
certiorari stage, as just summarized. See Chamber of Commerce Br. at 21, 25-
27; Brief Amicus Curiae of Product Liability Advisory Council, Inc., in
Support of Petitioner (“PLAC Br.”) at 15-16.

> For example, one of the amicus briefs, urging “the need for meaningful
appellate scrutiny” of punitive damage awards, cites the Third Circuit’s /nter
Medical Supplies decision in support of the argument that “little deference to
trial courts or juries” is owed in this context. Chamber of Commerce Br. at
3, 21 (citing 181 F.3d at 469). See also Pet. Br. at 13, 26 n.20 (arguing for
“rigorous appellate review” of punitive damage verdicts and rejecting the
“rational factfinder” test); Railroads Br. at 18, 25-27 (arguing that appellate
courts must conduct a “rigorous and independent evaluation” of the size of a
punitive damage verdict and rejecting the “rational factfinder” test).

“<4

5

appellate review of Cooper’s substantive due process argument
that the jury’s punitive damage award is too large. In their view,
the “rational factfinder” standard “is a sufficiency-of-the-
evidence standard for criminal trials under the Due Process
Clause” that “is simply a fish out of water” in this context.
Railroads Br. at 25, 27. See also Pet. Br. at 26 n.20 (objecting to
proposal “modeled after the test governing evidentiary
sufficiency challenges to criminal convictions”); Chamber of
Commerce Br. at 11 (arguing that to use “Jackson’s rational juror
standard” in this context “is misguided” because “it is not
possible to tell what facts (if any) the jury found in setting an
amount of punitive damages or what relative weight it gave to
any facts that may have been found”).

To the contrary, the “rational juror” standard, which calls for
an objective analysis of the record evidence under the governing
substantive law of damages, is perfectly suited to appellate
review of objections to the size of a jury’s damage award, a
matter that Chief Judge Posner has given careful attention in
several decisions dating back to 1983. The Chamber of
Commerce is correct in observing (at 11) that where the jury
renders a general verdict awarding damages, it is not possible to
tell what particular facts the jury found, or what relative weight
it gave to the facts it found. But this circumstance is precisely
what calls for use of the “rational juror” standard. “It is a
commonplace that a jury verdict must be reviewed in relation to
the record before it.” TXO Production Corp. v. Alliance
Resources Corp., 509 U.S. 443, 468 (1993) (Kennedy, J.,
concurring) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

The law neither requires juries to state reasons for their
verdicts nor permits courts to inquire into the reasoning
process of the jurors for the purpose of impeaching their
verdict. ... The law applies a bottom-line test: the
verdict is evaluated against the evidence, rather than
against the likelihood that the jury arrived at the verdict
by the “rational” process that a judge would employ. It
is enough (this is implicit in the bottom-line test) that a

6

rational jury could have come to such a verdict . . .; it is
a test of the reasonableness of the result rather than the
reasonableness of the process that led to the result.

Outboard Marine Corp. v. Babcock Indus., Inc., 106 F.3d 182,
186 (7th Cir. 1997) (Posner, C.J.) (citations omitted). Under this
standard, as long as a jury verdict is “neither absurdly high nor
absurdly low,” it will be upheld on appeal. /d. at 186-87. See
also Tuf Racing Products, Inc. v. American Suzuki Motor Corp.,
223 F.3d 585, 591 (7th Cir. 2000) (Posner, C.J.); Kasper v. St.
Mary of Nazareth Hosp., 135 F.3d 1170, 1176-77 (7th Cir. 1998)
(Posner, C.J.); Abernathy v. Superior Hardwoods, Inc., 704 F.2d
963, 971 (7th Cir. 1983) (Posner, J.).

Chief Judge Posner is hardly alone in this view. As already
noted, see Cert. Amicus Br. at 4-6, 8-9, 11-12, there is ample
precedent both from this Court and from the lower federal
appellate courts for using the “rational factfinder” standard to
judge a jury verdict’s conformity with applicable law in civil
litigation on both liability and damages, including punitive
damages. Cooper and its amici largely ignore this precedent.

To be sure, the “rational factfinder” label originated in the
criminal law context, in which the validity of the substantive
result reached by a jury is frequently challenged by defendants.
In Jackson v. Virginia, 443 U.S. 307 (1979), this Court held 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. /d. at 317-20, 324. 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

-o%

7

weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts,” thus “imping[ing] upon ‘jury’ discretion
only to the extent necessary to guarantee the fundamental
protection of due process of law.” /d. 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 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 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), stating
that, “[w]here 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 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). This Court held just last Term that the same test
applies in reviewing a motion for judgment as a matter of law, in
Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097
(2000), which calls for analysis of whether “no rational factfinder
could” find as did the jury. /d. at 2109. In doing so, this Court
clarified that under the “rational factfinder” standard, “the court

8

should review all of the evidence in the record,” but it “must
draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the
evidence.” /d. at 2110. In civil litigation, the lower federal
appellate courts routinely refer to the “rationality” of a finding of
liability when they analyze the record evidence in reviewing
district court rulings on motions for summary judgment and
judgment as a matter of law.‘

‘ See, e.g., Favorito v. Pannell, 27 F.3d 716, 719 (1st Cir. 1994);
Alvarez-Crespo v. Olavarria-Rivera, 994 F.2d 35, 36 (ist Cir. 1993); This is
Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998); Goldhirsh Group, Inc.
v. Alpert, 107 F.3d 105, 107-08 (2d Cir. 1997); United States v. 12] Allen
Place, 75 F.3d 118, 120-21 (2d Cir. 1996); Doby v. Decrescenzo, 171 F.3d
858, 873-74 (3d Cir. 1999); Jn re Merritt Logan, Inc., 901 F.2d 349, 366 (3d
Cir. 1990); Roebuck v. Drexel University, 852 F.2d 715, 730 (3d Cir. 1988)
(Becker, J.); Smith v. American Nat'l Red Cross, 1992 WL 357850, at *2 (4th
Cir. 1992); Thomas v. Texas Dep't of Crim. Justice, 220 F.3d 389, 392 (Sth
Cir. 2000); Waymire v. Harris County, 86 F.3d 424, 428 (Sth Cir. 1996); Gulf
South Medical & Surgical Inst. v. Aetna Life Ins. Co., 39 F.3d 520, 521 (Sth
Cir. 1994), cert. denied, 516 U.S. 814 (1995); Campbell v. St. Tammany
Parish Sch. Bd., 64 F.3d 184, 187 (Sth Cir. 1995); Premier Bank v.
Mosbacher, 959 F.2d 562, 566 (Sth Cir. 1992); Buntin v. Breathitt County Bd.
of Educ., 134 F.3d 796, 800 (6th Cir. 1998); Pitts v. Michael Miller Car
Rental, 942 F.2d 1067, 1069-70 (6th Cir. 1991); Kraus v. Sobel Corrugated
Containers, Inc., 915 F.2d 227, 229 (6th Cir. 1990); Pals v. Schepel Buick &
GMC Truck, Inc., 220 F.3d 495, 498 (7th Cir. 2000) (Easterbrook, J.); Tuohey
v. Chicago Park Dist., 148 F.3d 735, 740 (7th Cir. 1998); Pierce v. Atchison
T. & S.F. Ry., 110 F.3d 431, 438 (7th Cir. 1997); Transcraft, Inc. v. Galvin,
Stalmack, Kirschner & Clark, 39 F.3d 812, 815 (7th Cir. 1994) (Posner, C.J.);
In re Wade, 969 F.2d 241, 248 (7th Cir. 1992); Gremmels v. Tandy Corp.,
120 F.3d 103, 105 (8th Cir. 1997); Fredenburg v. Contra Costa County Dep't
of Health Servs., 172 F.3d 1176, 1179 (9th Cir. 1999); Scott v. Henrich, 39
F.3d 912, 915 (9th Cir. 1994) (Kozinski, J.), cert. denied, 515 U.S. 1159
(1995); Taylor v. List, 880 F.2d 1040, 1044-45 (9th Cir. 1989); Davis v.
United States Postal Serv., 142 F.3d 1334, 1341 (10th Cir. 1998); Gambetta
v. Prison Rehabilitative Indus. & Diversified Enters., Inc., 112 F.3d 1119,
1121 (11th Cir. 1997); 7. Harris Young & Assocs., Inc. v. Marquette
Electronics, Inc., 931 F.2d 816, 821, 828 (11th Cir.), cert. denied, 502 U.S.
1013 (1991).

a ee ee

9

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,” th's 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 v. 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
adopted a similar review standard with respect to criminal
forfeitures. United States v. Bajakajian, 524 U.S. 321, 336-37 &
n.10 (1998).

* 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);
United States v. DeLuca, 137 F.3d 24, 40 n.19 (1st 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 (11th Cir. 1997), cert. denied, $23 U.S.
1012 (1998); United States v. Angule-Lopez, 7 F.3d 1506, 1509-10 (10th Cir.
1993), cert. denied, $11 U.S. 1041 (1994).

10

In reviewing whether particular instances of civil fines are
constitutionally excessive, this Court has also treated the issue as
“legal” in nature and reviewable de novo, with no particular
deference to the views of lower courts or administrative agencies
concerning the ultimate constitutional issue of excessiveness.
See, e.g., St. Louis, I. 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).

Likewise, the “rational factfinder” standard has long been
used by the lower federal appellate courts in reviewing attacks on
the size of a jury’s compensatory damage award. Even during
the 1960s, when the existence of any federal appellate authority
to review excessiveness claims was a matter of considerable
dispute,® 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 uphoiding 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
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.” Jd. at 413 (emphasis added).’ At least several

* 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). See also
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.”) at 6-11.

’ A linkage between the “abuse of discretion” label for review of an
order on a 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 (1st Cir. 1997)

1]

circuits currently apply the “rational factfinder” standard in
reviewing attacks on the size of a jury’s compensatory damage
verdict. See Conner v. Schrader-Bridgeport Int'l, Inc., 227 F.3d
179, 201-02 n.21 (4th Cir. 2000); Smith v. Kmart Corp., 177
F.3d 19, 29-30 (1st Cir. 1999); Anthony v. G.M.D. Airline Servs.,
Inc., 17 F.3d 490, 493 (1st Cir. 1994); McNabola v. Chicago
Transit Auth., 10 F.3d 501, 517 (7th Cir. 1993); see also pp. 5-6,
supra (Seventh Circuit).

Finally, as already noted, in the review of attacks on the size
of jury-awarded punitive damages, most lower federal appellate
courts that have explicitly addressed the issue use the “rational
factfinder” standard. See pp. 3-4, supra. This approach has solid
support in this Court’s decisions during the past decade

(stating that under the abuse-of-discretion review standard set out in Gasperini
v. Center for Humanities, Inc., 518 U.S. 415 (1996), 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 $25,000 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 (1st 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).

Amicus agrees with the analysis of one of Cooper’s amici that it is the
substance of the appellate review standard, not the label, that matters. See
Railroads Br. at 15, 17-18. The disagreement is over what the substance of
that review should be. The Railroads Br. at 18, 25-27, argues that, in
substance, a federal appellate judge should conduct a “rigorous and
independent evaluation” of the size of a punitive damage verdict. The view
of amicus is that such review involves a prohibited reweighing of the
evidence, and that the substance of appellate review must be limited to an
analysis of whether a rational factfinder could on the trial record have awarded
the amount of punitive damages awarded by the jury, under the guideposts
identified in BMW v. Gore and other legal considerations. If amicus is
correct, what label is attached to such review is not particularly important. As
Judge Easterbrook has suggested in a somewhat similar context, when the
bottom-line issue is the rationality of the jury’s verdict on the record evidence,
a judge might “take Occam’s Razor and slice off unnecessary steps and
proceed directly to the question whether the evidence would permit a rational
trier of fact to conclude” as did the jury. Diaz v. Fort Wayne Foundry Corp.,
131 F.3d 711, 712 (7th Cir. 1997).

12

addressing federal substantive due process challenges to punitive
damage awards. In all three cases, the Court reviewed the “gross
excessiveness” issue just as it reviews issues raised by summary
judgment motions or motions for judgment as a matter of law
(most recently illustrated by last Term’s Reeves decision): as a
“legal” one, reviewable with the record read in the light most
favorable to the jury’s verdict, with no particular deference to the
views of the lower courts. 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” standard is
the appropriate standard for reviewing “gross excessiveness”
claims. Honda Motor Co. v. Oberg, 512 U.S. 415, 432 & n.10
(1994) (citing Jackson, 443 U.S. at 324). Indeed, review of a
jury verdict’s rationality under the Jackson standard is exactly
the standard that the petitioner in Oberg sought to have
instituted. 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.”).

The position that a “rational factfinder” standard governs
appellate review of punitive damage awards was also advanced
in one of the principal amicus briefs filed on behalf of the
petitioner in Oberg, submitted by the late Dean Griswold. That
brief suggested that “courts should be required to consider
whether a particular award is rationally related to the goals of
deterrence and punishment.” Brief Amici Curiae for the
American Council of Life Insurance, et al., in No. 93-644 (filed

:
|
|

13

Feb. 28, 1994) at 13-14. Further, Dean Griswold urged that “to
ensure that courts consult something other than their own
preconceptions in evaluating the rationality of such awards,
courts should be required to consider certain objectively
measurable indicia of what amounts are reasonably necessary to
serve the goals of deterrence and punishment,” in the form of “a
non-exclusive list of factors” for courts to consider in analyzing
the rationality of an award. /d. at 14. This Court took that
course two years later in BMW v. Gore.

B. The “Rational Factfinder” Standard is Easily
Administrable in the Punitive Damages Context

In sum, a considerable body of precedent holds that when a
criminal or civil litigant has lost a jury trial and has failed on all
procedural objections to the trial (e.g., claims of evidentiary or
instructional error), on appeal the litigant’s objection to the
substance of the jury’s holding — whether on liability or
damages — should be evaluated under a “rational factfinder”
standard, with all reasonable inferences drawn in favor of the
jury’s verdict, thereby leaving the evaluation of the weight of the
evidence to the jury (through its verdict) and the trial judge
(through his or her “thirteenth juror” role on posttrial motions).*

® One of Cooper’s amici argues that the “rational factfinder” standard
of appellate review that amicus advocates would somehow strip a federal
district court of its power, “in disposing of a Rule 59 motion, . . . to reweigh
the evidence, drawing its own inferences and assessing witness credibility.”
Railroads Br. at 25. To the contrary, the amicus brief at the certiorari stage
explicitly noted that the use by federal appellate courts of the “rational
factfinder” review standard leaves undisturbed the district courts’ “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.” Cert. Amicus Br.
at 14n.7. The strong concern expressed therein with ensuring that the federal
appellate courts do not unduly interfere with the district courts’ exercise of
their “thirteenth juror” role is illustrated by the citation to the brief that amicus
and other scholars submitted to this Court in Gasperini, arguing that the power
to alter jury verdicts based on a weight-of-the-evidence analysis is exclusive —

14

In an effort to exempt the field of punitive damages from the
operation of this traditional, commonsense review standard,
Cooper’s amici rely on dicta in this Court’s decision in Tuil v.
United States, 481 U.S. 412, 425-27 & n.9 (1987), to suggest that
a jury’s decision about how much in punitive damages is needed
to deter and punish a defendant’s wrongdoing is too “highly
discretionary” to count as a “factual” finding that need be made
by a jury at all, or that can be meaningfully assessed under a
“rational factfinder” standard. Railroads Br. at 10-11; PLAC Br.
at 25 & n.10. But this Tull dicta would appear to be irrelevant in
light of this Court’s decision in Feltner v. Columbia Pictures
Television, Inc., 523 U.S. 340 (1998), not addressed by Cooper
or its amici. In Feltner this Court recognized that historically
“cases involving discretionary monetary relief,” including
punitive damage cases, “were tried before juries,” and it stated
that the 7u// holding was limited to the determination of “the
amount of civil penalties to be paid to the Government.” /d. at
353, 355 (citing Coryell v. Colbaugh, 1 N. J. L. 77 (1791)). See
also Colleen P. Murphy, Judicial Assessment of Legal Remedies,
94 Nw. U. L. Rev. 153, 154-56, 159-71, 176-86, 198-203 (1999).

The idea that it is somehow difficult to treat a jury award of
punitive damages as a “factual” finding that is properly
scrutinized by asking whether a rational factfinder could have
awarded that amount on the record of the case, in light of the
purpose of punitive damages to deter and punish wrongful
conduct, is belied by actual litigation experience. As already
noted, this Court and lower federal appellate courts have had no
difficulty reviewing objections in particular cases that a given
punitive damage award is grossly excessive in light of the trial
court record and applicable legal guidelines, even after drawing
all reasonable inferences in favor of the jury’s verdict. See pp.
3, 11-12, supra.

The ease by which defendants can articulate a concise and
coherent attack on the rationality of a given punitive damages

to district judges and is effectively immune from control by appellate courts.
Id. (citing Gasperini Amicus Br., supra note 6, at 4-11, 22-24).

aes

° 15

verdict is illustrated by the argument that Exxon Corporation has
made concerning the $5 billion in punitive damages awarded
against it by a jury in the litigation brought by private parties in
the aftermath of the Exxon Valdez oil spill. That award, which is
currently on appeal in the Ninth Circuit, appears to be by far the
largest punitive damage verdict ever appealed within the federal
system. Exxon’s appellate argument that the award is grossly
excessive in violation of federal substantive due process is
carefully focused on the issue of whether the award is rational
on the record of the case, an argument that it forcefully advanced
in only 40 pages of appellate briefing.’ In making this argument,
in its opening brief Exxon invoked this Court’s holding “that
punitive damages should be ‘reasonable in their amount and
rational in light of their purpose to punish what has occurred and
to deter its repetition.’”'° In the first sentence of its reply brief,
Exxon stated that it was invoking “the most basic legal
requirement for punitive damages — that an award must be
rationally related to society’s purposes of deterrence and
punishment.”"'

* See Joint Opening Brief of Appellants Exxon Corporation and Exxon
Shipping Company in Baker v. Exxon Corporation in 9th Cir. No. 97-35191
(filed June 30, 1997) at 26-31, 68-77; Joint Reply Brief (filed October 16,
1997) at 1-2, 23-26, 42-59.

10 Joint Opening Brief at 26 (quoting Haslip, 499 U.S. at 9-12, 21-23,
and citing BMW v. Gore, 116 S. Ct. at 1595).

"Joint Reply Brief at 1. The thrust of Exxon’s argument is that its
actions in connection with the oil spill amounted at most to a non-intentional
tort, from which it did not profit but to the contrary had suffered a net $3.5
billion loss in cleanup costs, civil liabilities, criminal sanctions, and other
expenses. Exxon argues that to force it to pay an additional $5 billion in
punitive damages to plaintiffs who had suffered disruption caused by the oil
spill (the environmental damage was excluded from consideration, having
been addressed in earlier legal proceedings) could not rationally advance any
legitimate objective of deterrence or punishment.

In particular, Exxon contends that the objective of deterrence was fully
achieved by its incurring of $3.5 billion in spill-related costs, which plaintiffs

16

C. Due Process is More Than Satisfied By Appellate
Review of Whether a Jury’s Verdict is Rationally
Supported on the Record Under Substantive Law

Apparently in support of its suggestion that the use of a
“rational factfinder” review standard of appellate review would
be unduly deferential to jury verdicts, one of Cooper’s amici
argues that due process requires “meaningful judicial scrutiny”
on appeal. Chamber of Commerce Br. at 1-2. If construed to
mean that due process compels an appellate court to do
something more in a criminal or civil case besides ask itself if the
result reached by the jury is rational based on the record evidence
and pertinent legal considerations, this argument would entail
sweeping consequences. This Court has never held that due
process affords litigants any right of appeal at all. “[I]t is well
settled that there is no constitutional right to an appeal,” even in
a criminal case. Abney v. United States, 431 U.S. 651, 656
(1977) (citing McKane v. Durston, 153 U.S. 684 (1894)). “[I]t
was 100 years [after the founding of this nation] before the
defendant in a criminal case, even a capital case, was afforded

had “virtually concede[d]” was itself “enough to deter anyone from anything”
(as the United States and the district court had agreed in earlier proceedings),
deterrence that was confirmed by the fact that Exxon had already made
sweeping changes in its operations in an effort to minimize the risk of similar
accidents in the future. Joint Opening Br. at 27-28, 30-31; Joint Reply Br. at
1, 24-25. As to the objective of punishment, Exxon argues that this objective
was fully satisfied by the imposition against Exxon of $125 million in criminal
fines and restitut’on, “more than twice the aggregate of a// amounts previously
paid in criminal proceedings for environmental crimes,” an amount that
“represented the considered judgment of the Attorneys General of the United
States and Alaska, speaking for the public, concerning what was necessary to
achieve society's purposes of punishment and deterrence.” Joint Opening Br.
at 27-29. See also Joint Reply Br. at 25-26 (arguing that “the officials
authorized to express and vindicate society's norms have already done so,”
with the consequence that “(t]he jury verdict here does not express society’s
official condemnation of Exxon; rather, it overturns the balanced judgment
society made through its authorized representatives, and imposes a
punishment 200 times greater than the criminal fine the real Attorneys General
found appropriate and the court imposed”).

—__—— ee eee ee Se es e=pme

——

17

appellate review as of right.” Carroll v. United States, 354 U.S.
394, 400 & n.9 (1957) (summarizing the legislation creating a
right of appeal). This initiative was quickly adopted in many
states, but even today it appears that two states deny an appeal of
right in criminal cases. See Jn re Hamel, 629 A.2d 802, 804
(N.H. 1993); State v. Cooper, 498 A.2d 1209, 1213-16 (N.H.
1985); State v. Rogers, 434 S.E.2d 402, 405 (W. Va. 1993).

Likewise, in civil cases, for the first 159 years of this
nation’s history, § 22 of the Judiciary Act of 1789 and its
successors allowed appeal only on a “writ of error.” See 1 Stat.
84 (1789); Charles Warren, New Light on the History of the
Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 61-62, 101-
05 (1923). As amicus and other scholars summarized at length
in Gasperini, in numerous decisions prior to 1948 (when the
relevant statutory language was omitted from the judicial code)
this Court repeatedly refused to review claims by civil litigants
that a jury’s damage award was either inadequate or excessive.
See Gasperini Amicus Br., supra note 6, at 6-11, 22-24.

In its punitive damages decisions during the past decade, and
in its Gasperini decision, this Court has authorized federal
appellate review of the size of jury verdicts under the “rational
factfinder” standard, conducted on the record of the case with all
inferences drawn in favor of the verdict, in light of applicable
substantive law. This is the same standard of appellate review
used in other areas of litigation, both criminal and civil, to
measure a jury verdict’s conformity with applicable law. There
is no basis for any suggestion that the “rational factfinder”
standard of review fails to comport with due process. As the
respondent in Oberg pointed out without contradiction, to hold
that the “rational factfinder” test does not satisfy due process
would effectively constitutionalize weight-of-the-evidence
review, seriously disrupting criminal and civil litigation
nationwide. See Brief of Respondent in No. 93-644 (filed Apr.
1, 1994) at 14, 17 n.17, 38-50.

18

Il. ANY FEDERAL APPELLATE REVIEW OF JURY
FACTFINDING LESS DEFERENTIAL THAN THE
“RATIONAL FACTFINDER” STANDARD IS
CONSTITUTIONALLY AND STATUTORILY BARRED

In addition to the above considerations, the argument of
Cooper and its amici, founded largely on the Third Circuit’s /nter
Medical Supplies decision, that federal appellate courts should
engage in “rigorous” review of punitive damage awards,
exhibiting little if any deference to the jury, see pp. 4 & n.3,
supra, conflicts with fundamental strictures on the scope of
federal appellate review. By definition, an appellate court that
does not limit itself to the issue of whether a rational factfinder
could have reached the jury’s result, on the trial record and under
applicable law, must be engaging in weight-of-the-evidence
review or de novo review of the factual issue of what is the
proper amount of punitive damages in a particular case.'?

'2 Substantively there are only three review standards that a judge can
employ in reviewing a jury's verdict: review of whether the jury’s result is
rational on the record, review of whether the jury’s result is supported by the
judge’s own assessment of the weight of the evidence, and de novo review of
whether the judge would have reached the precise result reached by the jury,
had he or she been the factfinder. See Kevin M. Clermont, Procedure's
Magical Number Three: Psychological Bases for Standards of Decision, 72
Cornell L. Rev. 1115, 1126-27 (1987). The “rational factfinder” test does not
involve any sort of weight-of-the-evidence review of the jury’s verdict. In
Tibbs v. Florida, 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 a
motion for acquittal”). Thus, it would appear that by rejecting the “rational

19

As amicus and other scholars explained in Gasperini, this
form of federal appellate review is entirely improper. Appellate
weight-of-the-evidence or de novo review of jury verdicts has
been barred by statute since the enactment of the Judiciary Act
of 1789, § 22, 1 Stat. 84-85, to the present day, Gasperini Amicus
Br., supra note 6, at 22-24, a statutory structure which is both
compatible with basic fairness to litigants and which promotes
efficiency. /d. at 24-30. Even more fundamentally, the sort of
intensive review of jury verdicts advocated by Cooper and its
amici has been barred by the Re-Examination Clause of the
Seventh Amendment since the enactment of the Bill of Rights in
1791. Jd. at 4-21. As amicus has 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)).

factfinder” standard, Cooper and its amici must be embracing the proposition
that a federal appellate court may engage in weight-of-the-evidence review (or
even de novo review) of a jury's punitive damages verdict.

20

According litigants the right to appellate weight-of-the-
evidence review 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)
(Newman, J.). 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).

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 amicus reads 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

21

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, the invalidity under the Seventh
Amendment of the “intensive review” standard used by the Third
Circuit and advocated by Cooper and its amici 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 Gasperini, amicus and other scholars
confined their 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., supra note 6, at 20 & n.19 (citing Honda Motor Co.
v. Oberg, 512 U.S. 415, 432 n.10 (1994), and Southern Ry. v.
Bennett, 233 U.S. 80, 87 (1914) (Holmes, J.)).

22

CONCLUSION

When a criminal or civil litigant has lost a jury trial and has
failed on all available procedural objections to the trial, appellate
review of the substance of the jury’s finding has traditionally
been sharply limited, so as to leave to the jury and trial court the
role of evaluating the weight of the evidence. This Court should
apply in the punitive damages context the standard of appellate
review that traditionally has been used in both criminal and civil
litigation when one party argues that the result reached by the
jury is not sustainable under the relevant law on the particular
record of the case: the “rational factfinder” standard.

Respectfully submitted.

KENNETH CHESEBRO*
1600 Massachusetts Avenue

ARTHUR F. MCEVOY
975 Bascom Mall

Madison, WI 53706 No. 801
(608) 265-4771 Cambridge, MA 02138
(617) 661-4425

Counsel for Amicus Curiae

* Counsel of Record

January 16, 2001

APPENDIX
QUALIFICATIONS OF AMICUS CURIAE

Arthur F. McEvoy is the J. Willard Hurst Professor at
the University of Wisconsin Law School, where he teaches
American legal history. He 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0382%3A20. Public record. Not legal advice.