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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, March 21, 2007 ::
    Due Process limits on punitive damages?

    I've just finished an on-line debate sponsored by the Manhattan Institute, "against," or I should say "with," my revered mentor and torts professor, Prof. Michael Krauss. You can read it here.

    The subject was the Supreme Court's use of Due Process to cap what Michael aptly calls "bet the company" punitive damage awards. The news hook was the Court's recent decision in Philip Morris v. Williams, a coalition-busting case in which Justice Breyer led the Court further into (what I would call) a neo-Lochnerian grove, and the lead dissenter was Justice Ginsburg -- joined in full by Justices Scalia and Thomas.

    In this debate I agreed with -- Justice Ginsburg! Ha ha! No, really, I did -- and with Our Hero too, natch. But (and this is what made the debate fruitful as well as interesting), I became convinced that the "excessive fines" clause of the Eighth Am. may -- may -- provide protection against what punitive damages have turned into in the last twenty years or so. Go, read.

    Many thanks not only to Michael but also to Walter Olson and Vanessa Mendoza.

    :: David M. Wagner 12:26 PM [+] ::

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