Amicus Curiae Brief — Philip Morris USA v. Williams

#e | FILED

‘) SEP 15 2006

es 05- 1256

= CLERK

_ U.S.

IN THE

Supreme Court of the Gnited States

PHILIP MORRIS USA,

Petitioner,

v.

MAYOLA WILLIAMS,

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF OREGON

BRIEF OF AKHIL REED AMAR

AND ARTHUR MCEVOY AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

ARTHUR MCEvoy KENNETH CHESEBRO*

975 Bascom Mall 1770 Massachusetts Ave., #201

Madison, WI 53706 Cambridge, MA 02138

(608) 265-4771 (617) 661-4423

MICHAEL J. PIUZE

LAW OFFICES OF MICHAEL J. PIUZE

11755 Wilshire Blvd., Suite 1170

Los Angeles, CA 90025

(310) 312-1102

Counsel for Amici Curiae

*Counsel of Record

September 15, 2006

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Table of Contents

EE RE Ge ee eee een eee

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II.

History Supports the States’ Use of Exemplary

Damages to Deter Wrongdoing Generally, Not

Just to Vindicate Harms to Particular Plaintiffs . .

BR I ac en nctn eecnwxcudans

ee

History Supports the States’ Deference to

Juries in Determining the Amount of |

Deterrence-Based Exemplary Damages ........

Table of Authorities

CASES: PAGE:

Asa-Brandt, Inc. v. ADM Investor Services, Inc.,

344 F.3d 738 (8th Cir. 2003) ......... ccc ccceee 29

Barry v. Edmunds, 116 U.S. 550 (1886) .......... 18-19

Beardmore v. Carrington, 95 Eng. Rep. 790 (K.B. 1764) 9

Benson v. Frederick, 97 Eng. Rep. 1130 (K.B. 1766) ... 10

BMW of North America, Inc. v. Gore,

ee ee EE 6. fd ck dw sine e ede see ewes 26-28

Boyer v. Barr, 8 Neb. 68 (1878) ...............005: 22

Bruce v. Rawlins, 95 Eng. Rep. 934 (C.P. 1770) ....... 9

Burks v. United States, 437 U.S. 1 (1978) ........... 29

Burt v. Advertiser Newspaper Co.,

eS es ao ON « wide 4 Gwe eae kw ed 22

Cooper Industries, Inc. v. Leatherman

Tool Group, Inc., 532 U.S. 424 (2001) .......... 30

Coryell v. Colbaugh, 1 N.J.L. (1 Coxe) 77 (N.J. 1791) .. 138

Day v. Woodworth, 54 U.S. 363 (1851) ........... 10, 18

Detroit Daily Post Co. v. McArthur,

A a ink done 6 606 a beeen kek 22

Fay v. Parker, 53 N.H. 342 (1873) ................. 22

Feltner v. Columbia Pictures Television, Inc.,

Ee ed es oon eh 6ehe bes ue ewe 30

Genay v. Norris, 1 S.C.L. (1 Bay) 6

(S.C. Com. Pl. Gen. Sess. 1784) ............... 13

Glazer v. Glazer, 374 F.2d 390 (5th Cir.),

cert. denied, 389 U.S. 831 (1967) .............. 29

Goddard v. Grand Trunk Railway of Canada,

te ee Ree ne bs ahd ph 6450's 6s 15

Grable v. Margrave, 4 Ill. (3 Scam.) 372 (1842) ....... 16

Grey v. Grant, 95 Eng. Rep. 794 (C.P. 1764) ......... e

Hazard v. Israel, 1 Binn. 240 (Pa. 1808) ............ 13

Herrera v. Collins, 506 U.S. 390 (1993) ............. 29

Hogg v. Wilson, 1 Nott & McC. 216

rr rn CE: owns sree se enened eee ae 14

iii

CASES: PAGE:

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) .. 7, 24-28

Huckle v. Money,

95 Eng. Rep. 768 (C.P. 1763) ........ 7-9, 13, 24, 30

Huntley v. Bacon, 15 Conn. 267 (1842) ............. 16

Jackson v. Virginia, 443 U.S. 307(1979) .......... 27-29

Joan v. Joshua Shield’s Lessee,

3 H. & McH. 7 (Md. Gen. Oct. Term 1790) ...... 13

Johnson v. Ford Motor Co., 113 P.3d 82 (Cal. 2005) ..... 9

Kasper v. St. Mary of Nazareth Hosp.,

135 F.3d 1170 (7th Cir. 1998)................. 29

Lake Shore & Mich. S. Ry. Co. v. Prentice,

og SB G0 rt ee ee ee eee ee ee 19

Linsley v. Bushnell, 15 Conn. 225 (1842) ............ 16

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

EEE RA ree Pe ee 29

McBride v. McLaughlin, 5 Watts 375 (Pa. 1836) ..... 14

McWilliams v. Bragg, 3 Wis. 377 (1854) ............ 15

Milwaukee and St. Paul Ry. Co. v. Arms,

eS ed eee en Om 18

Minneapolis and St. Louis Railway Co.

v. Beckwith, 129 U.S. 26 (1888) ............... 19

Missouri Pacific Ry. Co. v. Humes,

I oi or niga eb wnt eeee ewe 17-18

Murphy v. Hobbs, 7 Colo. 541 (1884) ............... 22

Naeem v. McKesson Drug Co., 444 F.3d 593

DD ...dtdedgetucebetutenwseaeés -, 29

Outboard Marine Corp. v. Babcock Indus., Inc.,

106 F.3d 1823 (7th Cir. 1907)... 0... ccc ccccccces 29

Pacific Mutual Life Ins. Co. v. Haslip,

Ge 10, 20, 22, 24

Parklane Hoisiery Co. v. Shore,

oi ws eee obs 12

Penny v. Little, 3 Scam. (4 Ill.) 301 (1841) ........... 10

Philadelphia, Wilmington, and Baltimore

R.R. Co. v. Quigley, 62 U.S. 202 (1858) ......... 18

-

iv

CASES: PAGE:

Powell v. McCormack, 395 U.S. 486 (1969) ........ 7. ae

Reeves v. Sanderson Plumbing Products, Inc.,

Sey Ua GE IE wh o'h.n5'0:'8 000.0 Sc deesebenne 29

Sailor Inc. F/V v. City of Rockland,

428 F.3d 348 (1st Cir. 2005) ...........cccceee 29

Seminole Tribe of Florida v. Florida,

kg Ff © 0 Ser yt ee 11

Sharpe v. Brice, 96 Eng. Rep. 557 (C.P. 1774) ......... fe)

Spokane Truck & Dray Co. v. Hoefer,

fo EE er er 22

State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408 (2003) ................ 27

Taylor v. Grand Trunk Railway Co.,

Ges EE | ii'es'nca M0008 ov btn deobaen 15

The Amiable Nancy, 16 U.S. 546 (1818) ............ 14

The Amistad Case, 40 U.S. 518 (1841) .............. 16

Tibbs v. Florida, 457 U.S. 31 (1982) ............... 28

Tillotson v. Cheetham, 3 Johns. 56 (N.Y. 1808).... 13, 15

Tullidge v. Wade, 95 Eng. Rep. 909 (C.P. 1769) ....... 4

TXO Prod. Corp. v. Alliance Resources Corp.,

ee es Mr ED \0-0.0 n:oswes dice ntnece sudan 26

Whipple v. Walpole, 10 N.H.130 .................. 15

Wilkes v. Wood, 98 Eng. Rep. 489 (C.P. 1763) ........ 8-9

BOOoKs:

AKHIL REED AMAR, AMERICA’S CONSTITUTION:

A BIOGRAPHY (2005) ........ cheodacvatedvetioa 12

AKHIL REED AMAR, THE BILL OF RIGHTS:

CREATION AND RECONSTRUCTION (1998) .... 6, 11-12

AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL

PROCEDURE: FIRST PRINCIPLES (1997) ........ 6, 12

ARTHUR R. CASH, JOHN WILKES: THE SCANDALOUS

FATHER OF CIVIL LIBERTY (2006) ........... 6-7, 11

BOOKs: PAGE:

LAWRENCE M. FRIEDMAN, A HISTORY OF

AMERICAN LAW (3d ed. 2005) ................. 10

2 SIMON GREENLEAF, A TREATISE ON THE

LAW OF EVIDENCE (5th ed. 1854) ............ 20-22

2 SIMON GREENLEAF, A TREATISE ON

THE LAW OF EVIDENCE (William

Draper Lewis ed., 16th ed. 1899) ....... 9-10, 19-21

MORTON J. HORWITZ, THE TRANSFORMATION

OF AMERICAN LAW, 1780-1860 (1977) ........ 10, 17

MORTON J. HORWITZ, THE TRANSFORMATION

OF AMERICAN LAW, 1870-1960: THE CRISIS

OF LEGAL ORTHODOXY (1992) .............055. 21

HOWARD JONES, MUTINY ON THE AMISTAD: THE SAGA

OF A SLAVE REVOLT AND ITS IMPACT ON AMERICAN

ABOLITION, LAW, AND DIPLOMACY (1987) ....... 16

LOUIS KRONENBERGER, THE EXTRAORDINARY

MR. WILKES: HIS LIFE AND TIMES (1974) ........ 6-7

RAYMOND WILLIAM POSTGATE,

THAT DEVIL WILKES (1929) ................ 6-7, 11

GEORGE F. E. RUDE, WILKES AND LIBERTY:

CE 6-7

JOHN SAINSBURY, JOHN WILKES: THE LIVES

GA ED ng wc ccc cece cc ceccceccens 6-7

ARTHUR M. SCHLESINGER, JR.,

THE AGE OF JACKSON (1945) ............0000ce 16

THEODORE SEDGWICK, A TREATISEON THE _

MEASURE OF DAMAGES (lst ed. 1847) ...... 16-17, 21

THEODORE SEDGWICK, A TREATISE ON THE

MEASURE OF DAMAGES (2d ed. 1852) ........... 21

THEODORE SEDGWICK, A TREATISE ON THE MEASURE

OF DAMAGES (3rd ed. 1858) ..............00005 25

WILLIAM PURDIE TRELOAR, WILKES AND

EEE le cot 6-7

CHARLES CHENEVIX TRENCH, PORTRAIT OF A PATRIOT:

A BIOGRAPHY OF JOHN WILKES (1962) .......... 6-7

ARTICLES: PAGE:

Akhil Reed Amar, Foreword: Lord Camden Meets

Federalism — Using State Constitutions to Counter

Federal Abuses, 27 RUTGERS L.J. 845 (1996) ..... 11

Joseph Fred Benson, Reception of the Common Law in

Missouri: Section 1.010 as Interpreted »y ‘he Supreme

Court of Missouri, 67 Mo. L. REV. 595 (2002) .... 10

Kevin M. Clermont, Procedure’s Magical Number

Three: Psychological Bases for Standards of

Decision, 72 CORNELL L. REV. 1115 (1987) ..<«... 28

Thomas B. Colby, Beyond the Multiple Punishment

Problem: Punitive Damages as Punishment

for Individual, Private Wrongs,

87 MINN. L. REV. 583 (2003) ................ 9,14

Essay of a Democratic Federalist, reprinted in

3 THE COMPLETE ANTI-FEDERALIST 58 (Herbert J.

i Me 6 od tad etek Gaeaee ee pts 12

Essays by a Farmer (I), reprinted in

5 THE COMPLETE ANTI-FEDERALIST 5

(Herbert J. Storing ed., 1961) .......5......... 12

Alexander Hamilton, Federalist No. 83 '

GOR EUGENE GE. BOGGS ccc cccccccscccccces 12

Morton J. Horwitz, The History of the Public/Private

Distinction, 130 U. PA. L. REV. 1423 (1982) ...... 22

Louis Kaplow & Steven Shavell, Fairness Versus

Welfare, 114 HARV. L. REV. 961 (2001) ........ 25-26

Theron Metcalf, A Reading on Damages in Actions Ex

Delicto, 3 AM. JURIST & LAW MAG. 287 (1830) .... 15

Clarence Morris, Punitive Damages in Tort Cases,

ORs Ee DACP EEED cece eeeseetescens 8

Francesco Parisi, The Genesis of Liability in Ancient

Law , 3 AM. L. & ECON. REV. 82 (2001) ......... 25

Richard A. Posner, Retribution and Related Concepts

of Punishment, 9 J. LEGAL STUD. 71 (1980) ...... 25

ARTICLES: PAGE:

Alan Howard Scheiner, Judicial Assessment

of Punitive Damages, The Seventh

Amendment, and the Politics of

Jury Power, 91 COLUM. L. REV. 142 (1991) ...... 12

John Wilkes, North Briton, No. 45 ........... 5-8, 19, 24

Charles W. Wolfram, The Constitutional History

of the Seventh Amendment,

67 Mma. L. ReV. G30 (1973)... ww ccc cee 12

CONSTITUTION AND STATUTE:

U.S. Constitution, Seventh Amendment .. 4, 12, 17, 29-30

Northwest Ordinance of 1787 ..............00ee06: 10

LITIGATION MATERIALS:

Transcript of Oral Argument in Honda

Motor Co. v. Oberg, No. 93-644

(Apr. 20, 1994), 1994 WL 665077 .............. 27

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) ....... 27-28

Brief for Legal Historians Daniel R. Coquillette,

Mark M. Hager, Bruce H. Mann, and

Arthur F. McEvoy as Amici Curiae in

Support of Respondent in Honda Motor Co.

v. Oberg, No. 93-644 (filed Mar. 31, 1994) .... 24, 26

Brief of Federal Jurisdiction and Legal History

Scholars Akhil Reed Amar, et al., as

Amici Curiae in Support of Petitioner

in Gasperini v. The Center for Humanities,

No. 95-710 (filed Mar. 1, 1996) ................ 30

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Interest of Amici Curiae

This brief is submitted by two law professors who in

their past work have analyzed various aspects of legal

history pertinent to the remedy of punitive damages, also

known as “exemplary damages.”’ Amici respectfully suggest

that this brief may be of use to the Court as a counterpoint

to the analysis of legal history contained in the Brief for the

Petitioner (“Pet. Br.”) and in the Brief of the American Tort

Reform Association as Amicus Curiae in Support of

Petitioner (““ATRA Br.”) (ATRA’s analysis is adopted by

Philip Morris in Pet. Br. at 19 n.7).?

Akhil Reed Amar, the Southmayd Professor of Law

and Political Science at Yale University, teaches constitu-

tional law, federal jurisdiction, and legal history, among

other subjects. He has published extensively on the history

surrounding the drafting and ratification of the Constitution

and of the Bill of Rights, devoting significant attention to

historical matters relating to the role of the jury. He is a co-

editor of a leading constitutional law casebook, Processes of

? Given its historical focus, this brief uses the term “exemplary

damages” to refer to what today are typically termed “punitive damages.”

“Exemplary damages” is a term English common-law courts began using

in the 1760s to refer to extra-compensatory damages designed to punish

intentional wrongs and thereby deter their future commission by “making

an example” of the offender for others to heed. The term “punitive

damages,” which did not come into regular use until a century later, tends

to obscure the deterrence-based origin and function of such damages by

suggesting their principal function is “punishment,” in the sense of

retribution, that is, for its own sake. Thus we use the older term, which

more accurately reflects a principal original function of such extra-

compensatory damages, deterrence (both specific and general deterrence).

* All parties have consented to the filing of this brief (the parties’

blanket consents having been lodged with the Clerk). No counsel for a

party has written this brief in whole or in part. Indeed, this brief has

been independently researched and written; no counsel for any party or

any other amicus has seen drafts. No person or entity other than amici

curiae and their counsel has made 4 monetary contribution to the

preparation or submission of this brief.

2

Constitutional Decisionmaking, and -he author of numerous

law review articles. His several books include, most

recently, America’s Constitution: A Biography (Random

House, 2005); and The Bill of Rights: Creation and

Reconstruction (Yale University Press, 1998).

Arthur McEvoy, the J. Willard Hurst Professor at the

University of Wisconsin Law School, teaches American legal

history and torts 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 counsel of record on an amicus brief filed by

legal historians on that issue which this Court cited in

Honda Motor Co. v. Oberg, 512 U.S. 415, 422 n.2 (1994).

Introduction and Summary of Argument

Philip Morris and ATRA make three basic arguments

concerning the history of exemplary damages:

1. Through the second half of the 1800s, American

courts were sharply divided over the very existence of an

exemplary damages remedy — over the threshold question

of “whether damages could ever properly be imposed for

purposes of punishment,” even where the only harm

considered was harm done specifically to the plaintiff. Pet.

Br. at 18 (emphasis added). See also ATRA Br. at 8 & n.5.

2. Once “[c]ourts gradually began to accept that

damages could be used to punish as well as compensate,”

they focused on “the distinct harm to the party before the

court.” Pet. Br. at 18. This approach reflected the “general

consensus that punitive damages may be imposed only to

punish for the harm to the party before the court... .” Pet.

Br. at 19 (emphasis added). See also ATRA Br. at 5-12. “For

almost the entirety of their existence, punitive damages

were awarded only as punishment for harm to the specific

person bringing the claim.” Pet. Br. at 17. See also ATRA

3

Br. at 12 (“punitive damages were never understood as a

mechanism for vindicating affronts to society generally (or

for that matter to anyone other than the plaintiff)”).

3. Through “several centuries of Anglo-American legal

history, . . . low-single-digit ratios of punitive to compen-

satory damages have always been the norm,” Pet. Br. at 35

— anorm which “persisted throughout the 19th century and

much of the 20th.” Pet. Br. at 38. “Astronomical punitive

damages awards yielding multi-digit ratios are a phenome-

non that has emerged only recently. Such awards have no

basis in common-law history.” Pet. Br. at 38 (footnote

omitted). See also ATRA Br. at 21-30.

Part I of this brief demonstrates that each of the three

basic points urged by Philip Morris and ATRA is flawed.

There was no “sharp” division over the existence of an

exemplary damages remedy through 1899. The existence

and validity of this remedy was well established by the early

1800s under the common law of both England and America,

as Chancellor Kent contemporaneously observed.

Exemplary damages have never been limited only to the

consideration of harms done to the plaintiff. Nor were

exemplary damages historically confined to a low, single-

digit multiple of actual damages. From the beginning,

courts justified exemplary damages in significant part as a

mechanism to deter intentional wrongdoing and, at least in

cases founded on deterrence (we do not consider cases

founded on retribution), the ratio between exemplary and

compensatory damages was of little significance.

Exemplary damages set at “astronomica!” multiples of

the particular plaintiffs actual damages are no modern

phenomenon. At least with regard to deterrence-based

exemplary damages, such awards have been a hallmark of

this common-law remedy from its inception. The whole

point of the 1763 litigation pursued by John Wilkes and his

allies against government agents which led to the earliest

decisions was to use the threat of enormous exemplary

damages awards to deter sweeping invasions of privacy

effected pursuant to general warrants. Lord Chief Justice

Charles Pratt (later made Lord Camden) upheld enormous

4

exemplary damages in the cases involving Wilkes as an

appropriate means of deterring harm to others, and to

society generally. Lord Camden specifically rejected the

government’s argument that exemplary damages should not

be used for purposes of deterrence.

The exemplary damages cases involving Wilkes were

well known to the Founding generation. Wilkes and Lord

Camden were lionized in part for their role in these cases.

It is therefore no surprise that Lord Camden’s approach to

exemplary damages, including his focus on deterrence, was

retained by the state courts after independence as part of

their “reception” of the English common law. A handful of

state courts, many decades later, altered their common law

to bar exemplary damages. But in the states which did

continue to permit exemplary damages (the vast majority),

courts accepted Lord Camden’s fundamental insight that

exemplary damages should be based not simply on the harm

that had been done to the plaintiff but should also take

account of harm to others, and to society in general, and be

set at levels adequate to deter such harm in the future.

Part II of this brief addresses a separate but related

matter raised by Philip Morris and ATRA: the proper

division of authority between judge and jury. ATRA argues

that historical practice does not shield jury-awarded

exemplary damages “from exacting constitutional scrutiny,”

ATRA Br. at 30, and Philip Morris goes so far as to argue

that “long-established practice” requires that “when the

compensatory damages are substantial, the constitutional

maximum punishment is between zero and four times the

amount of compensatory damages.” Pet. Br. at 9. However,

the historical practice of the English courts dating back to

1763, and of the American courts during the 19th century,

was to defer heavily to jury determinations of exemplary

damages. Both as a matter of tradition as it existed when

the Fourteenth Amendment was enacted in 1868 and, even

more fundamentally, in light of the Seventh Amendment

enacted in 1791, the type of de novo or weight-of-the-

evidence review of exemplary damages which Philip Morris

and ATRA appear to champion is untenable.

5

Argument

I. History Supports the States’ Use of Exemplary

Damages to Deter Wrongdoing Generally, Not

Just to Vindicate Harms to Particular Plaintiffs

Philip Morris’s historical account is as follows. Through

1899 there was sharp division among American courts and

commentators over the very existence of an exemplary

damages remedy. Pet. Br. at 18. Once American courts

gradually did begin to permit exemplary damages, there

developed a general consensus that only the harm to the

plaintiff in the particular case could be considered, and that

exemplary damages should be strictly confined to punishing

for harm to that plaintiff. Pet. Br. at 17-19. Exemplary

damages awarded at multi-digit ratios above actual

damages were unknown until recently. Pet. Br. at 35, 38.

Philip Morris’s arguments are contrary to the historical

record. As Chancellor Kent contemporaneously observed,

exemplary damages were a well-established part of both

English and American common law by the early 1800s.

From their beginnings in the mid-1700s, they have been

awarded in large part not merely to punish for, or vindicate,

harm to the plaintiff, but to deter harms against others, and

against society generally — and at multi-digit ratios far

above the actual damages if found necessary for deterrence.

A. Early English Cases

Exemplary damages were first formally recognized as

a separate category of common-law damages in 1763, in the

landmark English cases involving the government’s target-

ing of John Wilkes for the alleged publication of North

Briton, No. 45. Wilkes was a Member of Parliament and

part of one of the Whig factions (led by William Pitt the

Elder) which fell into opposition to the government following

the accession of King George III in 1760, and which was

fighting the efforts of other factions desiring to enhance the

King’s powers and to negotiate a peace treaty with France.

6

The most notorious of the North Briton issues (which, while

published anonymously, were widely assumed to be written

chiefly by Wilkes) was North Briton, No. 45. It depicted the

King as the unwitting puppet of corrupt ministers who were

being covertly led by a Scottish lord who owed his influence

to an amorous connection with the King’s mother.®

Beyond his extraordinary abilitie; as a propagandist

and satirist, Wilkes was trained as a lawyer,‘ and was a

capable administrator (later serving with distinction as

sheriff, lord mayor, and chamberlain of London).* When the

King and government ministers attacked North Briton, No.

45, as seditious and treasonous, and launched searches and

seizures targeting dozens of individuals pursuant to general

warrants in an effort to obtain evidence that Wilkes was its

author, Wilkes drew on those skills to manage and finance

a series of lawsuits against government ministers and

agents seeking tort damages. Through their lawsuits,

Wilkes and his allies “recovered a King’s ransom from civil

juries to teach arrogant officialdom a lesson and to deter

future abuse,” and Wilkes became a hero of liberty and

democracy® — a reputation enhanced by Wilkes’s later use

® See generally ARTHUR R. CASH, JOHN WILKES: THE SCANDALOUS

FATHER OF CIVIL LIBERTY 38-43, 49-50, 56-57, 60-62, 65-100 (2006); JOHN

SAINSBURY, JOHN WILKES: THE LIVES OF A LIBERTINE xiv-xv, 45-70 (2006);

LOUIS KRONENBERGER, THE EXTRAORDINARY MR. WILKES: HIS LIFE AND

TIMES 16-35 (1974); GEORGE F. E. RUDE, WILKES AND LIBERTY: A SOCIAL

STUDY 18-23 (1962); CHARLES CHENEVIX TRENCH, PORTRAIT OF A PATRIOT:

A BIOGRAPHY OF JOHN WILKES 56-99 (1962); RAYMOND WILLIAM POSTGATE,

THAT DEVIL WILKES 4-5, 10-17, 30-36, 46-51 (1929).

* CASH, supra note 3, at 12, 16, 21; SAINSBURY, supra note 3, at x, 8.

* CASH, supra note 3, at 292-94, 308-14, 351-52, 378; KRONENBERGER,

supra note 3, at 138-44, 157-60, 187-88; TRENCH, supra note 3, at 290-94,

315-22; POSTGATE, supra note 3, at 180-82, 187-95, 212-16, 229-31;

WILLIAM PURDIE TRELOAR, WILKES AND THE CITY 107, 124-49, 193-208

(1917).

* AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE:

FIRST PRINCIPLES 29, 194 n.146 (1997). See also AKHIL REED AMAR, THE

BILL OF RIGHTS: CREATION AND RECONSTRUCTION 70-71 & n.* (1998);

7

of similarly aggressive tactics to win landmark victories for

the freedom of the press’ and the freedom of the ballot.®

One of the cases sparked by North Briton, No. 45,

Huckle v. Money, 95 Eng. Rep. 768 (C.P. 1763), involved a

claim for exemplary damages made by a journeyman printer

suspected of involvement with its printing. Huckle was

detained for only six hours. Money and the other govern-

ment agents treated him “rather well, feeding him ‘beef

steakes and beer, so that he suffered very little or no

damages’.... [T]he jury awarded him £ 300, an enormous

sum almost 300 times the plaintiffs weekly wage.” Honda

Motor Co. v. Oberg, 512 U.S. 415, 421 (1994) (quoting

Huckle, 95 Eng. Rep. at 768). Lord Chief Justice Charles

Pratt (later made Lord Camden) upheld the award in full on

the basis that the case involved not simply “the mere

personal injury” of the plaintiff, but also the liberty of “all

the King’s subjects” against the exercise of “arbitrary

power,” so that the jury had “done right in giving exemplary

CASH, supra note 3, at 100-16, 131-33, 161-62, 371-72; SAINSBURY, supra

note 3, at xv; KRONENBERGER, supra note 3, at 36-44, 250; RUDE, supra

note 3, at 23-30, 34, 193-98; TRENCH, supra note 3, at 88-128, 163, 370-72;

POSTGATE, supra note 3, at 51-61.

? Wilkes’s exploitation of certain prerogatives of the London courts

brought about, for the first time in English history, the ability of

newspapers to provide coverage of the proceedings of Parliament.

KRONENBERGER, supra note 3, at 130-35; RUDE, supra note 3, at 155-65,

194; TRENCH, supra note 3, at 279-85, 371; POSTGATE, supra note 3, at

173-77; TRELOAR, supra note 5, at 113-23.

® After years of effort, Wilkes established the right of voters to send as

their representative to the legislature whomever they wished (even

Wilkes, voted into Parliament once while under a sentence of outlawry,

and thrice while imprisoned), a principle upon which this Court drew in

Powell v. McCormack, 395 U.S. 486, 527-31 (1969). See also CASH, supra

note 3, at 179, 208-13, 221-22, 224-27, 237-38, 242, 246-58, 305, 310, 316-

18, 369-71; SAINSBURY, supra note 3, at xvi-xvii; KRONENBERGER, supra

note 3, at 88-93, 99-101, 120-26, 128-29; RUDE, supra note 3, at 41-75,

105-07, 111, 194; TRENCH, supra note 3, at 214-24, 231-34, 237-51, 312-13,

370-71; POSTGATE, supra note 3, at 121-27, 132-47, 198-200, 224.

8

—

damages.” 95 Eng. Rep. at 768-69.

A case brought by Wilkes sought to hold the govern-

ment accountable for searching his home under a general

warrant, in its effort to uncover evidence that Wilkes had

authored North Briton, No. 45. Wilkes v. Wood, 98 Eng. Rep.

489 (C.P. 1763). Wilkes specifically focused the case on

deterrence, which was the whole point of the coordinated

litigation effort. Arguing “that the case extended far beyond

Mr. Wilkes personally” to “touch[] the liberty of every

subject,” Wilkes’s counsel urged an award of “large and

exemplary damages” because “trifling damages would put no

stop to such proceedings ....” Id. at 490. Lord Camden

charged the jurors that they had “it in their power to give

damages for more than the injury received” so as “to deter

from any such proceeding for the future... .” Jd. at 498-99.

In so charging the jury, Lord Camden specifically

rejected the Solicitor General’s argument “[t]hat damages

shovld always be reckoned according to the injury received,”

id. at 494, and his argument that the public interest could

only be protected through criminal proceedings, not through

jury-awarded damages. Id. at 493 (“This was the first time

he ever knew a private action represented as the cause of all

the good people of England. If the constitution has, in any

instance, been violated, the Crown must be the prosecutor,

as it is in all criminal cases.”). So charged, the jury awarded

Wilkes £ 1000, more than three times the enormous sum

awarded the journeyman printer. Id. at 499."°

* The “enormous” (to use this Court’s description) exemplary damages

award upheld on little or no damages in Huckle v. Money refutes the

argument that “[a]stronomical punitive damages awards yielding multi-

digit ratios are a phenomenon that has emerged only recently,” and they

“have no basis in common-law history.” Pet. Br. at 38. Compare Clarence

Morris, Punitive Damages in Tort Cases, 44 HARV. L. REV. 1173, 1180 &

n.10 (1931) (noting 75 years ago that “punitive damages many times as

great as the actual damages have been affirmed”).

#? As Lord Camden’s analysis makes clear, both Huckle v. Money and

Wilkes v. Wood refute the argument made to this Court that the focus of

exemplary damages has always been on “the distinct harm to the party

9

Between 1764 and American independence, building on

Huckle v. Money and Wilkes v. Wood, the English courts

sustained other exemplary damages awards in a variety of.

contexts, typically involving powerful elites who abused

their power against ordinary people, justifying exemplary

damages as a means of deterring future such abuses. E.g.,

Beardmore v. Carrington, 95 Eng. Rep. 790 (K.B. 1764); Grey

v. Grant, 95 Eng. Rep. 794 (C.P. 1764); Benson v. Frederick,

97 Eng. Rep. 1130 (K.B. 1766); Tullidge v. Wade, 95 Eng.

Rep. 909 (C.P. 1769); Bruce v. Rawlins, 95 Eng. Rep. 934

(C.P. 1770); Sharpe v. Brice, 96 Eng. Rep. 557 (C.P. 1774).

B. Early American Cases

Citing an 1899 treatise, Philip Morris argues that

“[t]hroughout the second half of the 19th century, courts and

commentators were sharply divided over whether damages

before the court.” Pet. Br. at 18; see also Pet. Br. at 17 (“For almost the

entirety of their existence, punitive damages were awarded only as

punishment for harm to the specific person bringing the claim.”); ATRA

Br. at 12 (“punitive damages were never understood as a mechanism for

vindicating affronts to society generally (or for that matter anyone other

than the plaintiff)”). As our discussion below demonstrates in detail, this

argument by Philip Morris and ATRA ignores the well-settled deterrence

function of exemplary damages, one specifically relied upon in the original

1763 decisions and in many later decisions.

Similarly flawed is the analysis set forth in a law review article

heavily relied upon by Philip Morris and ATRA for their historical

argument, Thomas B. Colby, Beyond the Multiple Punishment Problem:

Punitive Damages as Punishment for Individual, Private Wrongs, 87

MINN. L. REV. 583 (2003) (cited in Pet. Br. at 12, 18, 38 n.25; ATRA Br. at

5, 9-12, 23). Despite the explicit deterrence rationale of Huckle v. Money,

Wilkes v. Wood, and many later cases, Colby argues that courts have

always conceived of exemplary damages “as punishment for the private

legal wrong — the insult — done to the individual plaintiff.” Id. at 619.

Last year the California Supreme Court rejected Colby’s “restrictive

historical view of the purposes of punitive damages,” explaining that

accepting “such a narrow view” would “blind state juries and courts to the

state’s public interest in deterring a wrongful course of conduct.” Johnson

v. Ford Motor Co., 113 P.3d 82, 91-92 (Cal. 2005).

10

could ever properly be imposed for purposes of punishment.”

Pet. Br. at 18 (emphasis added) (citing 2 SIMON GREENLEAF,

A TREATISE ON THE LAW OF EVIDENCE § 253, at 240-50

(William Draper Lewis ed., 16th ed. 1899)). But as this

Court has previously observed, “the common-law method for

assessing punitive damages was well established before the

Fourteenth Amendment was enacted,” Pacific Mutual Life

Ins. Co. v. Haslip, 499 U.S. 1, 17 (1991), a point which was

“made clear” in 1851 by Day v. Woodworth, 54 U.S. 363

(1851). Jd. That observation was a correct one.

Because the exemplary damages remedy was well

established under the common law of England prior to

American independence, it automatically became part of the

common law of nearly all states (both the thirteen original

states and those later admitted) due to their “reception” of

the English common law.”' Of course, the English common

law was not imported wholesale in America. There was no

slavish adherence to English common law as a technical

“Resisting the claim that the American plantations were ‘conquered’

territory and as such not entitled to the benefits of English law, the

colonists largely succeeded after 1720 in establishing the proposition that

they carried the English common law with them.” MORTON J. HORWITz,

THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 6 (1977) (citations

omitted). “[T}he first Continental Congress in 1774 .. . maintain[ed] that

Americans were ‘entitled to the common law’... .” Id. at 4, 270 n.16

(quoting 1 Journals of the Continental Congress 69 (1904)). “Between

1776 and 1784, eleven of the thirteen original states adopted, directly or

indirectly, some provision for the reception of the common law as well as

of limited classes of British statutes,” with the final two states following

in 1798 and 1818. Id. at 4, 270 n.18 (citing E. BROWN, BRITISH STATUTES

IN AMERICAN LAW, 1776-1836, at 24 (1964)). See also LAWRENCE M.

FRIEDMAN, A HISTORY OF AMERICAN LAW 66-70, 112 (3d ed. 2005).

Nor was reception of the English common law limited to the thirteen

original states. The Northwest Ordinance of 1787 mandated “judicial

proceedings according to the course of the common law” — that is, the

common law of England. E.g., Penny v. Little, 4 Ill. (8 Scam.) 301, 302-05

(1841). Virtually all the states admitted to the union after the Revolution

adopted the common law of England, with the date of reception typically

either left unspecified or set at 1776. See Joseph Fred Benson, Reception

of the Common Law in Missouri: Section 1.010 as Interpreted by the

Supreme Court of Missouri, 67 MO. L. REV. 595, 607-11 (2002) (catalog of

provisions compiled by Missouri's judicial archivist).

11

system, and there was enough distrust of some English

common-law principles that American judges felt latitude to

reject them as seemed warranted. See Seminole Tribe of

Florida v. Florida, 517 U.S. 44, 132-37 (1996) (Souter, J.,

joined by Ginsburg and Breyer, JJ., dissenting) (citing

numerous sources). But the particular principle animating

the exemplary damages doctrine — the need to provide a

remedy for common people to deter intentional wrongs by

powerful elites, in a proceeding administered by jurors who

would be difficult for elites to covertly influence — was

hardly the subject of distrust in America.

After all, the exemplary damages remedy had first been

formally recognized in the famous cases involving John

Wilkes and Lord Camden, which added greatly to their

status as “folk heroes in the colonies.”"* The various cases

involving Wilkes can be thought of “as the Brown v. Board

of Education of their day; and Lord Chief Justice Camden as

the Earl Warren of his era.” Akhil Reed Amar, Foreword:

Lord Camden Meets Federalism — Using State Constitutions

to Counter Federal Abuses, 27 RUTGERS L.J. 845, 846 (1996).

Indeed, the exemplary damages remedy played a part in the

dispute over ratification of the Constitution, particularly

over whether ratification should be conditioned on a Bill of

Rights guaranteeing the right to trial by jury in civil cases,

on the view that “[t]he prospect of jury oversight and jury-

* AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND

RECONSTRUCTION 66-67 (1998). As this Court has noted: “Wilkes’ struggle

and his ultimate victory had a significant impact in the American

colonies. His advocacy of libertarian causes and his pursuit of the right

to be seated in Parliament became a cause célébre for the colonies. ‘[T]he

cry of “Wilkes and Liberty” echoed loudly across the Atlantic Ocean as

wide publicity was given to every step of Wilkes’s public career in the

colonial press. ... [Colonials] saw him as a popular hero and a martyr

to the struggle for liberty. ... They named towns, counties, and even

children in his honour.” Powell v. McCormack, 395 U.S. 486, 530-31

(1969) (quoting 11 L. GIPSON, THE BRITISH EMPIRE BEFORE THE AMERICAN

REVOLUTION 222 (1956)). See also CASH, supra note 3, at 231-34, 259-60,

263-64 (noting the prominent revolutionaries who wrote Wilkes in

admiration, including John Adams, Samuel Adams, John Hancock, and

James Otis); POSTGATE, supra note 3, at 162-69, 206-07 (same).

12

awarded punitive damages would powerfully deter

government officials contemplating unreasonable conduct.”

Given the historical pedigree of the English common

law exemplary damages precedents and the reception of the

English common law by the new American states, it is

unsurprising that in the decades following independence,

state after state confirmed the existence of an exemplary

damages remedy under the common law, in accord with the

English cases establishing this remedy. Some examples:

In 1784, a South Carolina court upheld the exemplary

damages received by the victim of a practical joke. The

defendant, a physician, first staged a fake duel with the

intoxicated victim, and then slipped a diuretic into the wine

AMAR, supra note 12, at 70; see also AKHIL REED AMAR, AMERICA’S

CONSTITUTION: A BIOGRAPHY 233-34, 329-30 (2005); AKHIL REED AMAR,

THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 14-15,

29 (1997). For example, explaining the need for civil jury trials, one

Pennsylvania Anti-Federalist noted that if a federal officer searching “for

stolen goods, pulled down the clothes of a bed in which there was a

woman and searched under her shift . . . a trial by jury would be our

safest resource, heavy damage would at once punish the offender and

deter others from committing the same: but what satisfaction can we

expect from a lordly [judge] always ready to protect the officers of

government against the weak and helpless citizens.” Essay of a

Democratic Federalist, reprinted in 3 THE COMPLETE ANTI-FEDERALIST 58,

61 (Herbert J. Storing ed., 1981). Similarly, the prominent Anti-

Federalist essayist “Maryland Farmer” noted: “[N]o remedy has yet been

found equal to the task of deterring and curbing the insolence of office,

but a jury — [i]t has become an invariable maxim of English juries, to

give ruinous damages whenever an officer had deviated from the rigid

letter of the law, or been guilty of any unnecessary act of insolence or

oppression.” Essays by a Farmer (1), reprinted in 5 THE COMPLETE ANTI-

FEDERALIST 5, 14 (Herbert J. Storing ed., 1981). On the importance and

meaning of the Seventh Amendment, see generally Alexander Hamilton,

Federalist No. 83, at 499 (Clinton Rossiter ed., 1961) (“The friends and

adversaries of the plan of the convention, if they agree in nothing else,

concur at least in the value they set upon the trial by jury”); Parklane

Hoisiery Co. v. Shore, 439 U.S. 322, 339-46 (1979) (Rehnquist, J.,

dissenting); Alan Howard Scheiner, Judicial Assessment of Punitive

Damages, The Seventh Amendment, and the Politics of Jury Power, 91

CoLuM. L. REv. 142, 148-60 (1991); Charles W. Wolfram, The

Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639,

653-710 (1973).

13

he offered the victim for a “reconciliation” toast. The

defendant insisted it was all “a drunken frolic, and no injury

was seriously intended,” but the court upheld the plaintiff's

“very exemplary damages,” especially because the physician

“could not plead ignorance of the operation, and powerful

effects of this medicine.” Genay v. Norris, 1 S.C.L. (1 Bay)

6, 6 (S.C. Com. Pl. Gen. Sess. 1784).

In 1790, a Maryland court upheld a sizable damages

award in an ejectment action in a case in which the

plaintiffs counsel admitted the actual damages “were

insignificant,” but argued “the entry and ouster was so

violent as to deserve exemplary damages,” which the jury

“gave such as should deter others from such proceedings

.... Joan v. Joshua Shield’s Lessee, 3 H. & McH. 7, 8 (Md.

Gen. Oct. Term 1790).

In 1791, ina New Jersey lawsuit alleging seduction and

breach of promise of marriage, a jury was charged “not to

estimate the damages by any particular proof of suffering or

actual loss; but to give damages for example’s sake, to

prevent such offences in [the] future... .” Coryell v.

Colbaugh, 1 N.J.L. (1 Coxe) 77 (N.J. 1791). s

In 1808, the Pennsylvania Supreme Court upheld a

“severe” damages award against a sheriff for his deputy’s

invalid levy of property from the administrator of an estate.

Even though “the actual injury was nothing,” the court held

the jury could properly “have thought it a necessary check to

rude and improper behaviour of the sheriff and his officers.

... [T]he happiness of society requires that these officers

should be influenced by powerful motives to avoid all acts of

rudeness and wanton injury.” Hazard v. Israel, 1 Binn. 240,

246 (Pa. 1808). Compare note 13, supra. 1

The 1808 New York decision in Tillotson v. Cheetham,

3 Johns. 56 (N.Y. 1808), upheld an exemplary damages

award for libel. Written by Chief Justice (later Chancellor)

James Kent, it termed the exemplary damages doctrine

“well settled” in America. Kent saw no need for lengthy

exposition. He summarized several exemplary damages

decisions (including Huckle v. Money) and then concluded:

14

But it cannot be requisite to multiply instances in

which the doctrine, contained in this part of the

charge, has received the sanction of the

English and of the American courts of justice. It is

too well settled in practice, and is too valuable in

principle, to be called into question.

Id. at 64-65.

A 1818 maritime decision by this Court reflected the

sharp distinction which had developed between compen-

satory and exemplary damages, in specifying the damages

owed by the owners of a privateer who were constructively

liable for an illegal seizure. The owners were liable “for all

the injuries and losses actually sustained” on account of the

illegal seizure, “but they are not bound to the extent of

vindictive damages” — although in a suit against the crew

of the privateer, “it might be proper to go yet further, and

visit upon them in the shape of exemplary damages, the

proper punishment which belongs to such lawless conduct.”

The Amiable Nancy, 16 U.S. 546, 558-59 (1818) (Story, J.).

In 1818, emphasizing the deterrent function of

exemplary damages, a South Carolina court rejected an

attack on a jury verdict for slander: “Exemplary damages

are the only means of bridling licentious tongues.” Hogg v.

Wilson, 1 Nott & McC. 216, 216 (S.C. Const. 1818).

In 1836, reiterating its stance on exemplary damages

and citing English decisions, the Pennsylvania Supreme

Court stated: “Whatever be the speculative notions of

fanciful writers, the authorities teach that damages may be

given, in peculiar cases, not only to compensate, but to

punish. * ** That corrective damages may be given for the

sake of example, is as old as the law itself.” McBride v.

McLaughlin, 5 Watts 375, 376-77 (Pa. 1836)."*

* The “fanciful” writer the court had in mind apparently was Theron

Metcalf, a Boston lawyer who six years earlier had published an article

arguing a radical new theory concerning the exemplary damages doctrine.

Metcalf's article is relied on by ATRA’s amicus brief filed in support of

Philip Morris (ATRA Br. at 17-18), and in the chief law review article

relied on by Philip Morris and ATRA (Colby, supra note 10, at 617 n.119),

15

In 1839, the highest court of New Hampshire, in a case

involving harm caused by an unsafe bridge, upheld a jury

charge that “if the defendants had been guilty of. gross

negligence, .. . [the jurors] might, in their discretion, give

the plaintiff exemplary damages.” Whipple v. Walpole, 10

N.H. 130, 133 (1839). It cited both English authority and

Chancellor Kent’s 1808 analysis of the well-settled nature of

the doctrine, concluding a jury may award “damages beyond

the actual injury sustained, for the sake of the example... .”

Id. at 132.

with no acknowledgment of its radical, indeed, fanciful, nature.

Despite the preceding half century of both English and American

decisions authorizing the use of exemplary damages to punish and deter

intentional wrongdoing, Metcalf argued that “neither on principle, nor by

the preponderance of authority, can damages be estimated by any other

standard than the actual injury received ....” Theron Metcalf, A

Reading on Damages in Actions Ex Delicto, 3 AM. JURIST & LAW MAG. 287,

288 (1830). As to principle, he argued: “There would seem to be no reason

why a plaintiff should receive greater damages from a defendant who has

intentionally injured him, than from one who has injured him

accidentally, his loss being the same in both cases.” Jd. at 292. As to

precedent, he asserted that only “a few decisions and dicta,” advancing a

“preposterous and unjust” doctrine, cut against his thesis. Jd. at 304, 306.

These admittedly included Chancellor Kent’s decision in Tillotson stating

that the exemplary damages doctrine was “well settled” by 1808, which

Metcalf conceded was “highly respectable” authority. Yet, he insisted,

Chancéllor Kent had misread the relevant English cases. Jd. at 306-08.

Not surprisingly given its radical thesis and tendentious reading of

precedent, Metcalf’s analysis had little if any impact in the 19th century.

It was cited in only three court decisions (according to a Westlaw search),

each of which rejected the position argued by Metcalf. McWilliams v.

Bragg, 3 Wis. 377, 379 (1854); Taylor v. Grand Trunk Ry. Co., 48 N.H.

304, 319 (1869); Goddard v. Grant Trunk Ry. of Canada, 57 Me. 202, 220

(1869). Metcalf is, however, enjoying a remarkable renaissance in the

21st century. ATRA, for example, now refers to Metcalf’s article (written

for a legal journal that went out of business 163 years ago) as a “treatise.”

ATRA Br. at 17. To ATRA, anyone who cites Metcalf for his (accurate)

description of “the precise doctrine advanced” by mainstream thinkers, 3

AM. JURIST & LAW MAG. at 287 (language replaced with ellipses in ATRA

Br. at 17) — rather than citing his fanciful view that exemplary damages

“did not exist,” ATRA Br. at 18 — is making a “flatly misleading reference

to an 1830 treatise.” ATRA Br. at 17.

16

In two 1842 decisions, the highest court of Connecticut

emphasized the well-settled nature of the doctrine. Linsley

v. Bushnell, 15 Conn. 225, 236 (1842) (“There is no principle

better established, and no practice more universal, than that

vindictive damages, or smart money, may be, and is,

awarded, by the verdicts of juries, in cases of wanton or

malicious injuries”); Huntley v. Bacon, 15 Conn. 267, 273

(1842) (upholding exemplary damages charge; its propriety

“has been too frequently and too recently sanctioned, by this

court, to be again drawn into discussion or doubt”).

In 1842, Abraham Lincoln successfully defended on

appeal an exemplary damages award for seduction: “In

vindictive actions, and this is now regarded as one, the jury

are always permitted to give damages for the double purpose

of setting an example, and of punishing the wrong-doer.”

Grable v. Margrave, 4 Ill. (3 Scam.) 372, 373 (1842).

In 1847, the status of exemplary damages under

American law was reviewed in the first treatise on damages

published in the United States, by Theodore Sedgwick, a

leading member of the New York bar.” The treatise, which

Sedgwick wrote at Justice Story’s urging,”® was “the most

brilliant and boldly innovative American antebellum legal

%® Although his career was cut short by his untimely death in his late

40s, Sedgwick cosponsored David Dudley Field’s codification efforts;

worked with Field and Samuel J. Tilden in Democratic party politics;

served as co-counsel with John Quincy Adams in The Amistad Case, 40

U.S. 518 (1841); served as U.S. Attorney for New York; and produced

three editions of the seminal American treatise on damages. See

generally ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON 187-88, 233-

34, 315, 463, 468, 482 (1945); HOWARD JONES, MUTINY ON THE AMISTAD:

THE SAGA OF A SLAVE REVOLT AND ITS IMPACT ON AMERICAN ABOLITION,

LAW, AND DIPLOMACY 40, 68, 80, 219 (1987).

#® Justice Story wrote Sedgwick that “a thorough analysis of the whole

subject, with all the lights of the modern authorities” would have “great

utility to the profession,” as there existed “no book that treats of the

subject at once fully, accurately, and with suitable distinctions and

expositions of principle.” Letter from Justice Joseph Story to Theodore

Sedgwick, November 7, 1844 (reprinted in THEODORE SEDGWICK, A

TREATISE ON THE MEASURE OF DAMAGES 1-2 (1st ed. 1847)).

17

treatise.” HORWITZ, supra note 11, at 83. This Court

adopted its analysis of the exemplary damages doctrine,

calling it an “excellent treatise.” Missouri Pacific Ry. Co. v.

Humes, 115 U.S. 512, 521 (1885).

Sedgwick’s analysis of the exemplary damages doctrine

is straightforward and familiar. Generally, damages provide

compensation “for the actual loss sustained.” THEODORE

SEDGWICK, A TREATISE ON THE MEASURE OF DAMAGES 28 (1st

ed. 1847). However, for torts “accompanied by oppression,

fraud, malice, or negligence so gross as to raise a

presumption of malice, . . . the jury have a discretion to

award exemplary or vindictive damages... .” Id. at 27-28;

see also id. at 34 (referencing the “large class of cases where

the common law in giving relief loses sight of the principle

of compensation, and gives damages by way of punishment

for acts of malice, vexation, fraud or oppression”).

Sedgwick emphasized that a case involving exemplary

damages is conceptually distinct from a case involving

merely compensatory damages, as it involves the imposition

of punishment to protect society. Where there is a “question

of fraud, malice, gross negligence, or oppression” involved,

the law, instead of adhering to the system or even

the language of compensation, adopts a wholly

different rule. It permits the jury to give what it

terms punitory, vindictive, or exemplary damages;

in other words, blends together the interest of

society and of the aggrieved individual, and gives

damages not only to recompense the sufferer, but

to punish the offender.

Id. at 38-39. Sedgwick provided an analysis of thirteen

representative decisions, dating back to 1763, including

those of Chancellor Kent and Justice Story. Jd. at 39-44.

Four years after Sedgwick published his treatise, this

Court reached the same conclusion as Sedgwick concerning

the status of the exemplary damages doctrine, stating that

it was “a well-established principle of the common law” that

in tort cases “a jury may inflict what are called exemplary,

punitive, or vindictive damages upon a defendant, having in

18

mind the enormity of his offence rather than the measure of

compensation to the plaintiff.” Day v. Woodworth, 54 U.S.

363, 371 (1851). On the basis that “repeated judicial

decisions for more than a century are to be received as the

best exposition of what the law is,” this Court concluded that

“the question will not admit of argument.” Jd. ATRA

asserts that in Day, “this Court all but apologized for the

availability of exemplary damages in civil cases... .” ATRA

Br. at 3 (citing id.}. We see no basis for that assertion.

Seven years later, this Court reiterated that “punitive

or exemplary damages” may be recovered in tort cases

“fw]henever the injury complained of has been inflicted

maliciously or wantonly, and with circumstances of

contumely or indignity,” and that in such cases “the jury are

not limited to the ascertainment of a simple compensation

for the wrong committed against the aggrieved person.”

Philadelphia, Wilmington, and Baltimore R.R. Co. v.

Quigley, 62 U.S. 202, 213-14 (1858).

Seventeen years later, this Court reiterated that the

exemplary damages doctrine “is too well settled now to be

shaken”; that the doctrine is based “on the ground, not that

the sufferer is to be recompensed, but that the offender is to

be punished”; that juries are thereby “authorized, for the

sake of public example, to give such additional damages as

the circumstances require”; and that the doctrine “has been

accepted as the general rule in England and in most of the

States of this country.” Milwaukee and St. Paul Ry. Co. v.

Arms, 91 U.S. 489, 492-93 (1875).

Ten years later this Court, in an opinion 1 by Justice

Field, reaffirmed the above decisions; explicitly approved

Sedgwick’s analysis of how the exemplary damages remedy

protects the interests of society; and stated that “the wisdom

of allowing such additional damages to be given is attested

by the long continuance of the practice.” Missouri Pacific

Ry. Co. v. Humes, 115 U.S. 512, 521 (1885).

The next year, in Barry v. Edmunds, 116 U.S. 550

(1886), this Court stated that under “settled law,” a tort

plaintiff may seek “exemplary damages calculated to

vindicate his right and protect it against future similar

-_

19

invasions.” Jd. at 562. After discussing its earlier decisions

and selected lower court decisions, id. at 562-65, this Court

noted that it was unnecessary “further to multiply

authorities on this point,” for the precedents validating the

remedy of exemplary damages “are indefinite in number,

and the application of the rule as uniform as the

circumstances of the cases are various.” Id. at 565.

Three years later, in another opinion by Justice Field,

this Court noted that the “propriety and legality” of

exemplary damages had been recognized “by repeated

judicial decisions for more than a century,” so that their

imposition “cannot be opposed as in conflict with the

prohibition against the deprivation of property without due

process of law.” Minneapolis and St. Louis Railway Co. v.

Beckwith, 129 U.S. 26, 36 (1889).

Four years later, this Court again noted the “well

settled” nature of the exemplary damages remedy. Lake

Shore & Mich. S. Ry. Co. v. Prentice, 147 U.S. 101, 107

(1893). In a historical analysis, Justice Gray cited Lord

Camden’s 1763 decisions in the lawsuits involving Wilkes

and North Briton, No. 45, stating: “The recovery of damages,

beyond compensation for the injury received, by way of

punishing the guilty, and as an example to deter others from

offending in like manner, is here clearly recognized.” Jd.

Mentioning in its brief none of these seven decisions of

this Court decided between 1851 and 1893 — all confirming

the consensus status of the exemplary damages doctrine —

Philip Morris asserts: “Throughout the second half of the

19th century, courts and commentators were sharply divided

over whether damages could ever properly be imposed for

purposes of punishment.” Pet. Br. at 18. This assertion

rests on a citation to the 16th and final edition of Professor

Simon Greenleaf’s evidence treatise, published in 1899."’

*” 2 SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE § 253, at

240-50 (William Draper Lewis ed., 16th ed. 899). Philip Morris’s other

two citations provide no support for its assertion. One is a citation to

Sedgwick’s treatise, supplied only to illustrate the contrary view. The

second is a citation to a concurring opinion by Justice Scalia. That

20

The 1899 edition of Professor Greenleaf’s treatise

actually contradicts Philip Morris’s assertion that a “sharp”

division over the exemplary damages doctrine existed in

1899. Philip Morris relies on an 11-page footnote containing

Greenleafs radical assertion that awards of extra-

compensatory damages simply had no precedential support.

The footnote is appended to Greenleaf’s statement that

damages are solely “given as a compensation .. . for an

injury actually received by [plaintiff] from the defendant,”

and thus damages “should be precisely commensurate with

the injury, neither more nor less; and this whether it be to

his person or estate.” Greenleaf, supra note 17, at 240.

The only portion of this footnote actually arguing in

support of the statement in text is not any material

describing the law as it stood in the late 1800s, but material

which was written by Greenleaf more than 45 years before

the 16th edition was published in 1899. The first 581 of the

645 lines relied on by Philip Morris (90%) are identical to

the fifth edition published in 1854 shortly after Greenleaf's

death."® The remaining 10% of the material in the 1899

edition, added by editors after 1854 in several installments,

contains no argument in support of Greenleaf’s position circa

opinion actually undermines Philip Morris's assertion. Justice Scalia did

not suggest there was a relevant division among commentators over the

existence of exemplary or punitive damages throughout the 19th century,

that is, through 1899. Instead, he merely noted that “[a]s recently as the

mid-19th century, treatise writers sparred over whether they even

existed.” Pacific Mutual Life Tas. Co. v. Haslip, 499 U.S. 1, 25 (1991)

(Scalia, J., concurring in the judgment). Further, rebutting the notion

that the position argued in Greenleaf's treatise had solid support, and

thus was part of a “sharp” division, Justice Scalia stated that Greenleaf

view “was not widely shared.” Jd. Finally, Justice Scalia’s ultimate

conclusion based on the historical record (which Philip Morris ignores) is

one we share: by 1868, “punitive damages were undoubtedly an

established part of the American common law of torts.” Id. at 26.

® Compare 2 SIMON GREENLEAF, A TREATISE ON THE LAW OF EVIDENCE

§ 253, at 250-66 n.2 (5th ed. 1854), with 2 GREENLEAF, supra note 17, at

240-49 n.2. (Copies of these and other Greenleaf treatise sections, and of

various other materials referenced in this brief, are being posted online

in PDF format at http://blogs.law.harvard.edu/onfile/williams.)

21

1899; instead, these additions undermine that position. Of

the 27 post-1854 cases which are cited, virtually all are

contrary to Greenleaf's position. Further, two comments

added by the editors first undercut (in 1883) and then

abandon (in 1899) Greenleaf entire argument. They

describe the “large class of cases” which had been decided

contrary to “the elaborate argument of Mr. Greenleaf,” and

the “settled” nature of the exemplary damages doctrine.”

Even during his lifetime Greenleaf did not defend his

argument after Sedgwick attacked it in his second edition.”

1® A passage added in 1883 by the editor of the 14th edition (pages 263-

64) highlights the deterrence function of the exemplary damages doctrine

as it was being applied to railroads. It cites nine cases in support of this

statement: “There is a large class of cases, i.e. actions against railroad

companies for injuries inflicted by them, in which the language of courts

at least seems to uphold the view of Mr. Sedgwick. The underlying

principle is, perhaps, that the only way to secure safety for passengers is

to mulct the companies so heavily when accidents occur, that it will be for

their interest to use all possible precautions to avoid such accidents, and

in this roundabout way to produce a public benefit.” 2 GREENLEAF, supra

note 17, at 249 n.2.

The 15th edition, published in 1892, included no additions or edits

to this footnote. Both the 14th and 15th editions were edited by

Greenleaf’s grandson. Not until the 16th edition published in 1899 (the

edition relied on by Philip Morris) — a project carried out by Professor

(ater Dean) Wigmore and another law professor — was a statement

finally added recognizing that “the elaborate argument of Mr. Greenleaf”

made in his 1854 edition had been soundly rejected by the courts in the

subsequent 45 years. 2 GREENLEAF, supra note 17, at 250 n.2.

*° The first edition of Sedgwick’s damages treatise was published in

1847. It “demonstrated overwhelmingly the long-standing authority

behind punitive damages.” MORTON J. HORWITZ, THE TRANSFOAMATION OF

AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY, at 113

(1992). It was at this juncture that Greenleaf attacked Sedgwick’s

position; the lengthy footnote first appeared in the second edition of

Greenleaf's evidence treatise (pages 242-57) which was published in 1848.

In 1852, Sedgwick responded in his second edition, including a

detailed refutation of Greenleafs argument in which he described

Greenleaf's views as “untenable” and contrary to “the uniform language

of the courts.” THEODORE SEDGWICK, A TREATISE ON THE MEASURE OF

DAMAGES 466-67 n.4 (2d ed. 1852). Greenleafs fourth edition was

published in 1852 before Sedgwick’s second edition, so Greenleaf's chance

22

Thus, contrary to Philip Morris’s brief, this Court was

plainly correct, when it surveyed the historical record 15

years ago, in concluding that the exemplary damages

doctrine was “well established before the Fourteenth

Amendment was enacted” in 1868. Pacific Mutual Life Ins.

Co. v. Haslip, 499 U.S. 1, 17-(1991); see also id. at 25-26

(Scalia, J., concurring in the judgment). Indeed, our review

of the historical record has not uncovered any state which

prior to 1868 repudiated the common-law doctrine and

imposed a total bar on the recovery of exemplary damages;

instead, there was a common-law consensus in 1868. Only

after 1868, influenced by the beginnings of late-19th-century

legal formalism, did some courts begin to believe that-the

imposition of exemplary damages was “a usurpation of the

public law functions of the criminal law,” leading several

courts to impose a total bar on exemplary damages.”

to respond to Sedgwick was in his fifth edition, the last one he edited,

which was published in 1854, and in which Greenleaf updated his lengthy

footnote, adding 35 new lines summarizing two recent decisions (at pages

262 and 265). But Greenleaf neither defended himself against Sedgwick’s

attack on his analysis, nor edited the analysis in his footnote to remedy

the flaws identified by Sedgwick. He simply ignored Sedgwick’s attack.

2! Morton J. Horwitz, The History of the Public/Private Distinction,

130 U. PA. L. REV. 1423, 1425 (1982). It was “[d]uring the late 1870s and

1880s” that opposition to exemplary damages became powerful enough

that “the theoretical issue of the true nature of public versus private law

overshadowed the question of precedent,” and several courts “overthrew

.the doctrine of punitive damages... through a process of deduction from

the supposedly different inherent functions of public and private law.”

HORWITZ, supra note 20, at 113-14. As examples, Horwitz cites Fay v.

Parker, 53 N.H. 342, 382 (1873), and Murphy v. Hobbs, 7 Colo. 541, 551

(1884). Id. at 114, 296. Other examples of an absolute bar on exemplary

damages influenced by the public/private construct would appear to

include Boyer v. Barr, 8 Neb. 68, 72 (1878) (adopting Fay); Spokane Truck

& Dray Co. v. Hoefer, 2 Wash. 45 (1891) (adopting Fay and Murphy); Burt

vu. Advertiser Newspaper Co., 154 Mass. 238, 245 (1891) (Holmes, J.).

ATRA Br. at 8-9 n.5, asserts an 1868 Michigan decision banned all

exemplary damages, but in fact the decision merely shielded publishers

sued for libel if they had acted in good faith. Detroit Daily Post Co. v.

McArthur, 16 Mich. 447, 453-54 (1868). Philip Morris notes that

Michigan was allowing exemplary damages in 1874. Pet. Br. at 19.

23

History does not support the efforts of Philip Morris and

ATRA to obscure the deterrence-based origins of the

exemplary damages doctrine by asserting that historically

“punitive damages were awarded only as punishment for

harm to the specific person bringing the claim,” Pet. Br. at

17, and that “punitive damages were never understood as a

mechanism for vindicating affronts to society generally,”

ATRA Br. at 12. To the contrary, from their very beginnings

in the 1763 cases involving John Wilkes and presided over

by Lord Camden, both in England and in America

exemplary damages have been awarded in large part as a

means of advancing society’s interest in deterring

intentional wrongs.

II. History Supports the States’ Deference to

Juries in Determining the Amount of

Deterrence-Based Exemplary Damages

Philip Morris and ATRA make a related argument

concerning the history of exemplary damages which appears

equally without merit. The issue is what degree of deference

courts, particularly appellate courts, historically have

accorded juries in their determination of what amount of

exemplary damages is needed in a given case.

Both Philip Morris and ATRA appear to suggest that

there is no tradition of judges giving any particular

deference to the exemplary damages awarded by a jury ina

given case, so that de novo review, or at least some sort of

weight-of-the-evidence review, is permissible for this Court

to undertake. We do not know what else to make of their

statements, for example, that historical practice supposedly

does not shield jury-awarded exemplary damages “from

exacting constitutional scrutiny,” ATRA Br. at 30, and that

“long-established practice” supposedly requires that “when

compensatory damages are substantial, the constitutional

maximum punishment is between zero and four times the

amount of compensatory damages.” Pet. Br. at 9. Certainly

there is no mention in either brief of any sort of deference

owed juries in exemplary damages cases.

24

“As this Court has stated from its first due process

cases, traditional practice provides a touchstone for

constitutional analysis.” Hondd Motor Co. v. Oberg, 512

U.S. 415, 430 (1994). See also Pacific Mutual Life Ins. Co. v.

Haslip, 499 U.S. 1, 40 (1991) (Kennedy, J., concurring in the

judgment) (“Historical acceptance of legal institutions serves

to validate them not because history provides the most

convenient rule of decision but because we have confidence

that a long-accepted legal institution would not have

survived if it rested upon procedures found to be either

irrational or unfair.”). The traditional practice regarding

judicial review of exemplary damages verdicts, particularly

verdicts based on the deterrence rationale found in the

earliest cases, is one of deference to the jury’s weighing of

the facts of the case and the jury’s judgment regarding what

size award is appropriate. The view that judges (particularly

appellate judges) can or should engage in de novo or weight-

of-the-evidence review of damages awards, including

exemplary damages awards, is inconsistent with the

historical record.

For example, in rejecting a challenge to the exemplary

damages awarded in one of the cases involving John Wil'ses

and North Briton, No. 45 (see pp. 5-8, supra), Lord Camden

stated that “it is very dangerous for the Judges to

intermeddle in damages for tort; it must be a glaring case

indeed of outrageous damages in a tort, and which all

‘mankind at first blush must think so, to induce a Court to

grant a new trial for excessive damages.” Huckle v. Money,

95 Eng. Rep. 768, 769 (C.P. 1763). Later English cases

generally deferred to “the jury’s determination of damages”

(though they reserved the power “to order new trials solely

on the basis that the damages were too high,” and

sometimes did order them).”* Such deference to jury verdicts

2 Oberg, 512 U.S. at 422-23. See also Brief for Legal Historians Daniel

R. Coquillette, Mark M. Hager, Bruce H. Mann, and Arthur F. McEvoy as

Amici Curiae in Support of Respondent in Honda Motor Co. v. Oberg, No.

93-644 (filed Mar. 31, 1994), at 4-8 (“Oberg Historians’ Amicus Br.”) (cited

in this Court’s Oberg decision, id. at 422 n.2).

25

on damages was, Theodore Sedgwick noted, a corollary of

the welcome movement in the law away from the earlier

blunderbuss approach of having damages arbitrarily fixed

under preset schedules, or according to arbitrary ratios.”

33 Sedgwick observed that it was “the laws of remote and barbarous

periods” which took “the most minute care” in fixing damages recoveries

(for example, sixth-century England used a damages schedule under

which six shillings were due for a front tooth knocked out; 10 shillings for

a great toe cut off; 12 shillings for an ear cut off, etc.).. THEODORE

SEDGWICK, A TREATISE ON THE MEASURE OF DAMAGES 13 (3rd ed. 1858).

Schedules of specific damages “arbitrarily assessed in each class of cases,

without reference to the actual injury sustained in the particular case”

are found in “still more ancient” codes, for example double damages for

certain offenses under Jewish law. Jd. at 21. With the advance of

civilization, the law outgrew such arbitrary damages rules, as tribunals

were formed which could “be trusted with the assessment of the amount”

of damages, id. at 16 — in England, the jury. Jd. at 19. Sedgwick

believed that such arbitrary rules were “always a misfortune and a defect

in jurisprudence; they should never be tolerated, unless on account of

some peculiar and extraordinary difficulty in arriving at the truth of the

individual case.” Jd. at 16. ,

Modern scholarship confirms Sedgwick’s insights and further

illustrates that arbitrary “ratio” rules such as Philip Morris’s proposed

“multiple-of-0-to-4 rule,” Pet. Br. at 9, draw on the historical record of

remote periods. Primitive and early societies typically had “no officials to

take action against murder, theft, and other coercive acts,” so deterrence

of intentional wrongs was accomplished though “the possibility of

retaliation by victim against aggressor,” usually with help from the

victim’s family or broader group. Richard A. Posner, Retribution and

Related Concepts of Punishment, 9 J. LEGAL STUD. 71, 76-77 (1980). In

such societies, the principle of “the lex talionis of early Roman law,” and

“the ‘eye for an eye’ precept in the Old Testament... and in many other

early codes” developed “as a substitute for or limitation on vengeance.”

Without such a limitation, “people might react to a wrong by retaliating

against the wrongdoer disproportionally and, especially when this was so,

the original wrongdoer or his family might in turn retaliate against the

original retaliator or his family,” in “an endless cycle of injury, retaliation,

and counter-retaliation ....” Jd. at 71, 82. The principle of lex

talionis preserved social order by supplanting “the ancient practices of

indiscriminate personal revenge” in which “partisan bias” risked

triggering “spirals of escalating violence.” Francesco Parisi, The Genesis

of Liability in Ancient Law , 3 AM. L. & ECON. REV. 82, 86-87 (2001). See

also Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV.

L. REV. 961, 1282-84 (2001). Of course, with the rise of the modern

administrative state, which couples a monopoly on legitimate violence

26

Historically, American courts followed the English

practice of providing some judicial review of jurors’ damages

verdicts while generally according heavy deference to the

discretion of the jury. Typically judges only disturbed

verdicts so extravagant and inexplicable on the record of the

case as to make clear that the jurors’ verdict must have been

the product of “passion and prejudice,” and not the product

of a fair trial involving reasoned decisionmaking based on

the evidence. Oberg, 512 U.S. at 424-26; see also Oberg

Historians’ Amicus Br., supra note 22, at 12-19.

Consistent with this history, various justices of this

Court have stated that in an exemplary damages case where

there are no indications that the trial was unfair or that the

jury engaged in improper reasoning, there attaches to a jury

verdict a presumption (possibly irrebuttable, or virtually so)

that the product of that fair process comports with due

process. E.g., TXO Prod. Corp. v. Alliance Resources Corp.,

509 U.S. 443, 457 (1993) (plurality opinion) (citing earlier

opinions by Justices Scalia and Kennedy); BMW of North

America, Inc. v. Gore, 517 U.S. 559, 586-88 (1996) (Breyer,

J., joined by O’Connor and Souter, JJ., concurring). So far,

this Court has not disturbed any jury verdict to which that

presumption attached. In both cases in which this Court

has found problematic the size of an exemplary damages

award, the presumption did not attach because of serious

with elaborate procedural protections, id. at 1284, the predicate for

insisting on a principle of proportional retaliation long ago vanished.

Still, given the period during which the observance of proportional limits

on retaliation was important to social order, “it would not be surprising

that everyone, . . . would be inclined to find the retributive conception of

fair punishment intuitively appealing.” Jd. at 1287. But today “it would

make no sense” to apply this conception developed in primitive times to

limit the penalties otherwise found appropriate to increase the well-being

of all members of modern society. Jd. at 1288. An understanding of

economic principles coupled with an understanding of “the origins and

functions of retribution as a social norm makes clear that there is no good

reason for treating our intuitions about retribution as if they constituted

an independent basis for” limiting the punishment found to be

appropriate to improve the welfare of members of society. Jd. at 1290.

27

defects this Court saw in the underlying trials.”

Confirmation that appellate judges historically have not

engaged in de novo or weight-of-the-evidence review of

exemplary damages awards is found in the arguments made

by prominent members of this Court’s bar in Oberg, in

addressing what level of judicial review is required by due

process. They did not suggest the existence of any tradition

of de novo or weight-of-the-evidence review which should

inform the content of due process.

Most notably, the lead counsel for the petitioner in

Oberg, who is also lead counsel for Philip Morris in this case,

was pressed by Justice O’Connor at the Oberg oral argument

about the nature of the judicial review being sought as a

matter of due process. Justice O’Connor asked “why should

the constitutionally mandated review be any more than is

required in a criminal case” under the standard of Jackson

uv. Virginia, 443 U.S. 307, 317-20, 324 (1979)? He conceded

that judicial feview under Jackson’s “rational factfinder”

test would be constitutionally adequate judicial review,

stating: “I have no problem with that standard. That's

what we would like to see the Court supply.” Transcript of

Oral Argument in Honda Motor Co. v. Oberg, No. 93-644

(Apr. 20, 1994), 1994 WL 665077, at *15-*17.

A similar position was advanced by the late Dean

Griswold in an amicus brief filed on behalf of the petitioner

* In State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003),

there was no hint of any presumption in operation; indeed, this Court

affirmatively indicated that its concerns were “heightened” because the

jury had awarded $145 million in exemplary damages after being

presented “with evidence that has little bearing as to the amount of

punitive damages that should be awarded,” evidence that was “tangential

or only inflammatory.” Jd. at 418; see also id. at 420-24 (summarizing

concerns about fairness of trial). In BMW of North America, Inc. v. Gore,

517 U.S. 559 (1996), no presumption could attach because it was conceded

that “the jury improperly computed the amount of punitive damages by

multiplying Dr. Gore’s compensatory damages’ of $4,000 (the loss of value

due to the repainting of his vehicle) “by the number of similar sales in

other jurisdictions” (approximately 1,000), id. at 564, 567, even though

“neither the jury nor the trial court was presented with evidence that any

of BMW’s out-of-state conduct was unlawful.” Jd. at 573.

28

in Oberg. He 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 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. Id. at 14. This Court took that

course two years laterin BMWv. Gore. _

In its Oberg decision, this Court held only “that

Oregon’s denial of judicial review” of exemplary damages

awards violated due process, and did not decide “what

standard of review is constitutionally required.” Oberg, 512

U.S. at 432 & n.10. However, this Court suggested that the

traditional approach of review for “passion and prejudice”

might be a rough equivalent of the Jackson standard, which

asks whether a “rational trier of fact could have” reached the

jury’s verdict. Id. at 432 n.10. “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 “imping[ing] upon ‘jury’ discretion only to the

extent necessary to guarantee the fundamental protection of

due process of law.” Jackson, 443 U.S. at 319.”

** By definition, review under the Jackson “rational factfinder” test is

conceptually distinct from both de novo review and weight-of-the-evidence

review. See Kevin M. Clermont, Procedure’s Magical Number Three:

Psychological Bases for Standards of Decision, 72 CORNELL L. REV. 1115,

1126-27 (1987). The function of the Jackson test in a criminal case is to

set, as a matter of due process, “a lower limit on an appellate court’s

definition of evidentiary sufficiency,” which means no weight-of-the-

evidence analysis is permitted; rather, “the reviewing cou * must view

‘the evidence in the light most favorable to the pros ution.” Tibbs v.

Florida, 457 U.S. 31, 45 & n.21 (1982) (quoting Jackson, 443 U.S. at 319).

29

Jackson involved the review of evidentiary sufficiency

to sustain a criminal conviction, but a close variant of the

Jackson standard has traditionally applied to judicial review

of jury determinations in civil litigation as well.” Judicial

review of a jury’s verdict under Jackson’s “rational

factfinder” standard is obviously the most that any civil

litigant could claim a right to as a matter of due process.

Thus, if a defendant attacking an exemplary damages award

following a procedurally fair trial fails to show that no

rational jury could reach that result, due process should

provide no basis for displacing the jury’s verdict.

Even if de novo or weight-of-the-evidence were somehow

permitted or even required by due process, there would

remain the Seventh Amendment problem with this Court or

any other federal appellate court conducting such review.

As amici have discussed at length in an earlier amicus brief,

a key function of the Re-Examination Clause of the Seventh

See also Herrera v. Collins, 506 U.S. 390, 402 (1993) (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”).

** As to liability determinations, this Court has required use of the

Jackson “rational factfinder” standard both in the summary judgment

context, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

585-88 (1986), and on motions for judgment as a matter of law. Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 149-51 (2000). The

standard has long been used by the lower federal appellate courts in

reviewing attacks on the size of a jury's compensatory damage award.

E.g., Glazer v. Glazer, 374 F.2d 390, 413 (5th Cir.) (Wisdom, J.), cert.

denied, 389 U.S. 831 (1967) (striking down $1.9 million compensatory

award for breach of contract 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”). See also

Naeem v. McKesson Drug Co., 444 F.3d 593, 611 (7th Cir. 2006); Sailor

Inc. F/V v. City of Rockland, 428 F.3d 348, 353-55 (1st Cir. 2005) (Boudin,

J.); Asa-Brandt, Inc. v. ADM Investor Services, Inc., 344 F.3d 738, 745

(8th Cir. 2003); Kasper v. St. Mary of Nazareth Hosp., 135 F.3d 1170,

1176-77 (7th Cir. 1998) (Posner, C.J.); Outboard Marine Corp. v. Babcock

~ Indus., Inc., 106 F.3d 182, 186-87 (7th Cir. 1997) (Posner, C.J.).

30

Amendment is to bar federal appellate courts, including this

Court, from engaging in any sort of de novo or weight-of-the-

evidence review of jury verdicts, including damages awards.

Brief of Federal Jurisdiction and Legal History Scholars

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

Petitioner in Gasperini v. The Center for Humanities, No. 95-

710 (filed Mar. 1, 1996), at 4-21.

In exemplary damages cases based on deterrence, a jury

must “look to the future conduct of the defendant and

others; the question is: how large a judgment is needed to

discourage this sort of conduct in the future?” Morris, supra

note 9, 44 HARV. L. REV. at 1179. As far back as 1763, in

Huckle v. Money, 95 Eng. Rep. 768, 768 (C.P. 1763), Lord

Camden emphasized that juries awarding exemplary dam-

ages in tort cases must consider “a vast variety of causes,

facts, and circumstances... .” Huckle was one of the cases

this Court cited in upholding a Seventh Amendment right to

a jury trial on statutory damages in a copyright case.

Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340,

353 (1998). It would be extraordinary if Huckle were good

precedent for the right to a jury trial in a copyright case but

not good precedent for the right to a jury trial in a case like

Huckle seeking deterrence-based exemplary damages.

It was in large part to ensure that cases involving

exemplary damages and other important matters would be

decided by juries, not by judges who might be beholden to

elites, that the Seventh Amendment was made part of our

Constitution. See note 13, supra. Even if it is possible to

characterize some exemplary damages awards as involving

the expression of abstract moral condemnation and not the

decision of questions of historical or predictive fact,

see Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,

532 U.S. 424, 437-39 (2001), such a theory could not support

wholesale nullification of the Seventh Amendment in the

field of exemplary damages, particularly as to awards

specifically focused on a deterrence rationale. Because the

Seventh Amendment is one of the few structural constraints

imposed by the Constitution on this Court’s own power, it

deserves close attention wherever potentially relevant.

Respectfully submitted.

ARTHUR MCEVOY KENNETH CHESEBRO"

975 Bascom Mall 1770 Massachusetts Ave., # 201

Madison, WI 53706 Cambridge, MA 02138

(608) 265-4771 (617) 661-4423

MICHAEL J. PIUZE

LAW OFFICES OF MICHAEL J. PIUZE

11755 Wilshire Blvd., Suite 1170

Los Angeles, CA 90025

(310) 312-1102

Counsel for Amici Curiae

* Counsel of Record

September 15, 2006