Punitive damages, retribution, and due process

Southern California Law Review

Volumn 81, Issue 2, 2008, Pages 263-309

  Geistfeld, Mark A ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 41549139560     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (179)

1. In 1989, the Court left open the question "whether due process acts as a check on undue jury discretion to award punitive damages in the absence of any express statutory limit." Browning-Ferris Indus, of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 277 (1989). A decisive, affirmative answer to that question was provided by the Court a few years later in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 11-23 (1991).
2. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
3. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).
4. Brief for Respondent at i, Phillip Morris USA v. Williams, 127 S. Ct. 1057 (2007) (No. 05-1256), available at http://www.abanet.org/publiced/ preview/briefs/pdfs/06-07/051256_Respondent.pdf (characterizing the issue in these terms).
5. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 563 (1996).
6. State Farm, 538 U.S. at 414.
7. Williams, 127 S. Ct. at 1062.
8. Williams v. Philip Morris Inc., 127 P.3d 1165, 1175 (Or. 2006), vacated and remanded sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).
9. Id. at 1181-82.
10. Williams, 127 S. Ct. at 1063.
11. Id. at 1065.
12. Thomas C. Galligan, Jr., U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Tort Law - Defamation, Preemption, and Punitive Damages, 74 U. CIN. L. REV. 1189, 1256 (2006) (emphasis in original).
13. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).
14. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (quoting BMW of N. Am., Inc., 517 U.S. at 575).
15. Williams, 127 S. Ct. at 1064.
16. Id. at 1066-67 (Stevens, J., dissenting) (citation and footnote omitted).
17. Id. at 1068 (Ginsburg, J., dissenting) (arguing that the majority failed to identify any way in which the Oregon courts had improperly relied on third-party harms to determine reprehensibility).
18. See Smith v. Wade, 461 U.S. 30, 52 (1983) (explaining that under common-law principles, "punitive damages ... are never awarded as of right, no matter how egregious the defendant's conduct," whereas compensatory damages "are mandatory" once liability has been established).
19. DAN B. DOBBS, THE LAW OF TORTS 1062 (2000).
20. Id.
21. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003).
22. Id. at 416.
23. To be sure, the mere prospect of punitive damages gives any duty-holder an incentive to comply with the tort obligations, thereby protecting any individual right-holder in this respect. This deterrence is general and not specific to the individual right-holder, however. As a constitutional matter, the objectives of deterrence and retribution must be framed solely in terms of the individual tort right. See infra note 113 and accompanying text.
24. See RESTATEMENT (SECOND) OF TORTS § 901 (1979) (stating that two of "the purposes for which actions of tort are maintainable" are to "determine rights" and "vindicate parties"); RICHARD L. BLATT, ROBERT W. HAMMESFAHR & LORI S. NUGENT, PUNITIVE DAMAGES: A STATE-BY-STATE GUIDE TO LAW AND PRACTICE § 1.3 (1991) (listing various names for describing punitive damages, including "vindictive damages").
25. Jules L. Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 YALE L.J. 1335, 1338-39(1986).
26. The conduct, more precisely, inefficiently enables the defendant to convert a "property rule" into a "liability rule." See David D. Haddock, Fred S. McChesney & Menahem Spiegel, An Ordinary Economic Rationale for Extraordinary Legal Sanctions, 78 CAL. L. REV. 1, 17-21 (1990).
27. See, e.g., Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 382 (Ct. App. 1981) (upholding a substantial punitive award based on the defendant's conclusion that it would be cheaper to pay compensatory damages than to remedy a defectively designed automobile);
28. Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154, 156 (Wis. 1997) (upholding a substantial punitive award as a means of preventing the defendant trespasser from using compensatory damages to purchase an easement).
29. ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND THE LAW 152 (1999) (citation omitted). See also Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1686 (1992) (arguing that "retribution is a response to a wrong that is intended to vindicate the value of the victim denied by the wrongdoer's action through the construction of an event that not only repudiates the action's message of superiority over the victim but does so in a way that confirms them as equal by virtue of their humanity").
30. RIPSTEIN, supra note 28, at 153 (citation omitted).
31. See, e.g., Ward v. Ward, 41 Iowa 686, 688 (1875) (observing that "vindictive damages are never allowed alone for the purpose of public good through the example given in their assessment" because "[t]he effect upon the public is but an incident" of vindicating the private right).
32. Hampton, supra note 28.
33. Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 AM. U. L. REV. 1393, 1432-39 (1993) (arguing that punitive damages correct an imbalance between the parties by acknowledging the moral worth of the victim and sending a public signal that the defendant acted in a particularly blameworthy way toward the plaintiff).
34. Anthony J. Sebok, Punitive Damages: From Myth to Theory, 92 IOWA L. REV. 957, 961 (2007) (emphasis omitted).
35. Benjamin C. Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105, 106 (2005) (emphasis in original).
36. A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 HARV. L. REV. 869, 948 (1998).
37. As a leading treatise explains: Wrongful death statutes create a new cause of action for the benefit of survivors; it is not merely a continuance of the deceased's own claim. At the same [time] they provide or have been interpreted to mean that no new cause of action is created unless the deceased himself would have been able to sue had he lived. DOBBS, supra note 19, at 815. Punitive damages in the wrongful death suit, therefore, can vindicate the decedent's tort right, explaining why "the statutes themselves" and "a sizeable number of decisions have now allowed a recovery of punitive damages in death actions or have approved them in principle."
38. Id. at 813.
39. See infra Part III.
40. According to the U.S. Supreme Court: Most cases under state common law, although varying in their precise terminology, have adopted more or less the same rule, recognizing that punitive damages in tort cases may be awarded not only for actual intent to injure or evil motive, but also for recklessness, serious indifference to or disregard for the rights of others, or even gross negligence. Smith v. Wade, 461 U.S. 30, 47-48 (1983).
41. "[T]he overwhelming majority of jurisdictions allow crimes based on ordinary negligence." State v. Hazelwood, 946 P.2d 875, 884 n.17 (Alaska 1997). Ordinary negligence, however, "applies in only a relatively few modern statutory crimes....[F]or the most part, ... something more than negligence is required for criminal liability." WAYNE R. LAFAVE, 1 SUBSTANTIVE CRIMINAL LAW § 5.4(a)(2) (2d ed. 2003). Criminal liability usually requires "a risk greater than simply an unreasonable risk" and/or "a subjective awareness of the unreasonable risk [the duty-holder] creates." Id. These added requirements for criminal liability correspond to those required for purposes of punitive damages.
42. See supra note 38 and accompanying text.
43. Thomas B. Colby, Beyond the Multiple Punishment Problem: Punitive Damages as Punishment for Individual, Private Wrongs, 87 MINN. L. REV. 583, 622 (2003). The issue does not involve the Double Jeopardy Clause of the U.S. Constitution.
44. See United States v. Halper, 490 U.S. 435, 451 (1989), overruled on other grounds by Hudson v. United States, 522 U.S. 93, 101 (1997) (stating that the "protections of the Double Jeopardy Clause are not triggered by litigation between private parties").
45. See, e.g., Bruce Chapman & Michael Trebilcock, Punitive Damages: Divergence in Search of a Rationale, 40 ALA. L. REV. 741, 780-86 (1989) (explaining why criminal liability, rather than tort liability, governs harm suffered by a general class of right-holders).
46. RESTATEMENT (SECOND) OF TORTS § 901 (1979).
47. See, e.g., David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. REV. 59, 59 (1996) (observing that under the early common law, "[i]n most instances, the same wrong could be prosecuted either as a crime or as a tort").
48. See id. at 59-60 ("According to the lawyers, victims who preferred vengeance over compensation prosecuted their wrongdoers for crime. Victims who preferred compensation over vengeance sued their wrongdoers for tort.").
49. The tort maxim sic utere tuo ut alienum non laedas literally means "Use your own property in such a manner as not to injure that of another." BLACK'S LAW DICTIONARY 1238 (5th ed. 1979). As applied to risky behavior not involving the use of property, the maxim yields a common law principle that "under the common law a man acts at his peril." OLIVER WENDELL HOLMES, JR., THE COMMON LAW 82 (Mark DeWolfe Howe ed., Harvard Univ. Press 1967) (1881) (emphasis omitted) (stating that "some of the greatest common-law authorities" held this view).
50. See, e.g., Perkins v. F.I.E. Corp., 762 F.2d 1250, 1255 (5th Cir. 1985) (noting that under Louisiana law, the sic utere maxim is the basis for strict liability for ultrahazardous activities);
51. Stephen D. Sugarman, Vincent v. Lake Erie Transportation Co.: Liability for Harm Caused by Necessity, in TORTS STORIES 259 (Robert L. Rabin & Stephen D. Sugarman eds., 2003) (discussing how the sic utere maxim influenced the famous case of Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910)).
52. See DOBBS, supra note 19, at 1283 (explaining the rule that "a duty of reasonable care is not ordinarily owed to protect against purely commercial loss");
53. Id. § 308 (identifying various limitations of recovery for negligent infliction of emotional distress).
54. See 4 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, THE LAW OF TORTS 563-64 (2d ed. 1986) ("All agree that [full compensation for pain and suffering] does not mean the sum that the plaintiff - or anyone else - would be willing to suffer the injury for.").
55. See generally L. R. James, Annotation, Instructions in a Personal Injury Action Which, in Effect, Tell Jurors that in Assessing Damages They Should Put Themselves in Injured Person's Place, 96 A.L.R.2d 760 (1964).
56. RESTATEMENT (SECOND) OF TORTS § 903 cmt. a (1979).
57. Thomas Nagel has identified three different problems created by the claim that death is bad when considered from the perspective of the dead person: First, doubt may be raised whether anything can be bad for a man without being positively unpleasant for him: specifically, it may be doubted that there are evils which consist merely in the deprivation or absence of possible goods, and which do not depend on someone's minding that deprivation. Second, there are special difficulties, in the case of death, about how the supposed misfortune is to be assigned to a subject at all. There is doubt both as to who its subject is, and as to when he undergoes it. So long as a person exists, he has not yet died, and once he has died, he no longer exists; so there seems to be no time when death, if it is a misfortune, can be ascribed to its unfortunate subject. The third type of difficulty concerns the asymmetry ... between our attitudes to posthumous and prenatal nonexistence. How can the former be bad if the latter is not? THOMAS NAGEL, MORTAL QUESTIONS 4 (1979) (emphasis in original).
58. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 4 (Proposed Final Draft No. 1, 2005) (defining "physical harm" to include physical impairment of the body caused by death);
59. id. § 6 (stating general rule of negligence liability for having caused "physical harm").
60. See NAGEL, supra note 50, at 2-10 (showing why any loss attributable to death can only be understood from the perspective of the living).
61. A compensatory tort right gives a right-holder's interest in physical security legal priority over the duty-holder's various interests in liberty, creating a tort obligation that burdens the duty-holder's (subordinate) liberty interests in order to compensate any harms those interests foreseeably cause to a right-holder's (superior) interest in physical security. The priority is justified by a principle of equality that values individual autonomy or self-determination, and so the priority must be relative to the overarching principle. Like physical security, liberty is essential for purposes of autonomy, and so tort law cannot ban risky behavior merely because it threatens right-holders with physical harm. This requirement is satisfied by the foregoing compensatory tort right, which enables the duty-holder to engage in risky behavior while using compensation to protect the right-holder's interest in physical security. Tort law expressly recognizes such a priority, the nature of which explains the important doctrines of tort law. See generally MARK A. GEISTFELD, PRINCIPLES OF PRODUCTS LIABILITY 9-33 (2006) (showing how the compensatory conception can explain the important doctrines of products liability in terms of consumer choice);
62. MARK A. GEISTFELD, TORT LAW: THE ESSENTIALS (forthcoming 2008) (showing how a compensatory tort right can explain the important doctrines of tort law); Mark Geistfeld, The Analytics of Duty: Medical Monitoring and Related Forms of Economic Loss, 88 VA. L. REV. 1921 (2002) [hereinafter Geistfeld, The Analytics of Duty] (showing how the compensatory conception can explain the important limitations of duty regarding economic loss and emotional distress);
63. Mark Geistfeld, Negligence, Compensation, and the Coherence of Tort Law, 91 GEO. L.J. 585 (2003) (developing the compensatory conception of tort liability);
64. Mark A. Geistfeld, Necessity and the Logic of Strict Liability, ISSUES IN LEGAL SCHOLARSHIP 4 (2005), available at http://www.bepress.com/ils (showing how the compensatory conception can explain the rules of strict liability, including the doctrine of necessity).
65. RESTATEMENT (SECOND) OF TORTS § 901 (1979).
66. Tort scholars have reflexively ignored the compensatory conception of tort law by assuming that the limitations of tort liability somehow disprove the conception. See, e.g., Stanley Ingber, Rethinking Intangible Injuries: A Focus on Remedy, 73 CAL. L. REV. 772, 775 (1985) (rejecting the compensatory rationale for tort liability because "[t]he tort system does not ... purport to redress all material losses, physical or mental"). The limitations of tort liability under the ex post conception of compensation, however, do not disprove the proposition that tort liability is adequately compensatory in the ex ante sense.
67. Cass R. Sunstein, Daniel Kahneman & David Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 YALE L.J. 2071, 2085 (1998).
68. See infra Part IV. For more formal proof showing that individuals ordinarily will accept money in exchange for facing a fatal risk, see Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CAL. L. REV. 773, 843-44 (1995) [hereinafter Geistfeld, Pain and Suffering].
69. See RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT OF LIABILITY § 2 (2000).
70. RESTATEMENT (SECOND) OF TORTS § 283 cmt. c (1965) (justifying the objective standard on the ground that "the law can have no favorites").
71. The WTA risk measure includes the cost of risk aversion, making the pedestrian risk-neutral with respect to any decision concerning her receipt of the WTA risk measure. A risk-neutral person whose utility function is not altered by the gamble in question is indifferent between "a certainty consequence" (the receipt of the $60 WTA risk proceeds) and "any risky prospect whose mathematical expectation of consequences equals that certainty" (the $6 million damages award in the 1:100,000 event of injury). JACK HIRSHLEIFER & JOHN G. RILEY, THE ANALYTICS OF UNCERTAINTY AND INFORMATION 23 (1992).
72. See supra note 48 and accompanying text.
73. See also Mark A. Geistfeld, Due Process and the Determination of Pain and Suffering Tort Damages, 55 DEPAUL L. REV. 331, 349-57 (2006) [hereinafter Geistfeld, Due Process] (showing how this damages measure can be derived from the duty of reasonable care and arguing that this measure is appropriate for enforcing the duty);
74. Geistfeld, Pain and Suffering, supra note 57, at 810-18 (showing how this damages measure can be harmonized with the case law, including the rule that jurors should not try to "value" the nonmonetary injury).
75. The damages award is a complete substitute for the WTA risk measure only when the injury does not alter the pedestrian's utility function. When the right-holder suffers severe physical injury, her utility function can be altered so that the satisfaction she gets from a range of activities is changed from the pre-injury state. More formally, the injury can alter the victim's marginal utility of income or wealth. These injuries frequently reduce the victim's marginal utility of income - a dead victim being the most obvious example - and so the right-holder would prefer to receive the WTA risk proceeds prior to the risky interaction, when money is more valuable, rather than being provided with a damages remedy, formulated in terms of the WTA risk measure, afterwards, when the money is less valuable. In these circumstances, a damages remedy formulated in terms of the WTA risk measure falls short of ex ante full compensation.
76. W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 127, at 945 (5th ed. 1984).
77. See RESTATEMENT (SECOND) OF TORTS § 283 cmt. e (1965) (stating that whether a duty-holder exercised reasonable care requires a determination of "whether the magnitude of the risk outweighs the value which the law attaches to the conduct which involves it").
78. In the prior example, the duty-holder could expend the $60 WTA risk measure on an equivalent amount of care rather than damages. See supra note 60 and accompanying text. For a more rigorous development of this approach, see Mark A. Geistfeld, Efficiency, Fairness, and the Economic Analysis of Tort Law, in THEORETICAL FOUNDATIONS OF LAW AND ECONOMICS (Mark D. White ed., forthcoming 2008).
79. See Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 437 n.11 (2001) ("Until well into the 19th century, punitive damages frequently operated to compensate for intangible injuries, compensation which was not otherwise available under the narrow conception of compensatory damages prevalent at the time.").
80. For an extended discussion of the historical basis for this concept of punitive damages, see Colby, supra note 40, at 614-22 (describing how courts first awarded punitive damages both to punish the wrongdoer and to compensate the plaintiff for intangible harms);
81. Anthony J. Sebok, What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today, 78 CHI.-K ENT L. REV. 163, 165 (2003) (same). The inherent connection between compensatory and punitive damages is reflected in contemporary settlement practices. According to one study, plaintiffs' lawyers report that "in practice there is no clear dividing line between compensatory and punitive damages. Compensatory damages can punish, just as punitive damages can compensate." Tom Baker, Transforming Punishment into Compensation: In the Shadow of Punitive Damages, 1998 WIS. L. REV. 211, 212. Indeed, some states currently limit punitive damages to a compensatory role.
82. See, e.g., Fagot v. Ciravola, 445 F. Supp. 342, 345 (E.D. La. 1978) ("[T]o the extent that Louisiana permits damage awards that other states would term 'exemplary' or 'punitive,' Louisiana has relied on what may often be viewed as the compensatory nature of even punitive damages.");
83. Kewin v. Mass. Mut. Life Ins. Co., 295 N.W.2d 50, 55 (Mich. 1980) ("In Michigan, exemplary damages are recoverable as compensation to the plaintiff, not as punishment of the defendant.");
84. Munson v. Raudonis, 387 A.2d 1174, 1177 (N.H. 1978) (stating that despite statutory prohibition against punitive damages, enhanced compensatory damages are available in cases of actual malice). Consistently with the proposition that punitive damages are predicated on inadequate compensatory damages, the limited role of punitive damages in some of these jurisdictions is offset by expanded compensatory damages in wrongful death suits beyond the amount allowed by the majority of jurisdictions.
85. See N.H. REV. STAT. ANN. § 507:16 (1997) (prohibiting punitive damages unless otherwise allowed by statute);
86. Marcotte v. Timberlane/Hampstead Sch. Dist, 733 A.2d 394, 405 (N.H. 1999) (allowing compensatory damages for decedent's loss of life's pleasures in wrongful death action).
87. Compare Berry v. Loiseau, 614 A.2d 414, 435 (Conn. 1992) (noting that "punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiff's litigation expenses less taxable costs") with Katsetos v. Nolan, 368 A.2d 172, 184 (Conn. 1976) (allowing compensatory damages for decedent's loss of life's pleasures in wrongful death action).
88. See supra Part II.
89. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1061 (2007).
90. See supra notes 1-5 and accompanying text.
91. Jane Massey Draper, Excessiveness or Inadequacy of Punitive Damages Awarded in Personal Injury or Death Cases, 12 A.L.R.5th 195, 195 (1993) (identifying improper juror motive as the reason for reducing a punitive award on judicial review).
92. Honda Motor Co. v. Oberg, 512 U.S. 415, 425 (1994).
93. Williams v. Philip Morris Inc., 127 P.3d 1165, 1177 (Or. 2006), vacated and remanded sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) (quoting Parrott v. Carr Chevrolet, Inc., 17 P.3d 473, 483 (Or. 2001)).
94. See supra Part II.
95. See Williams, 127 P.3d at 1167. Recovery under the Oregon Wrongful Death Act compensates a limited group of statutorily defined beneficiaries for their loss caused by the decedent's premature death. OR. REV. STAT. § 30.020 (2005). The cause of action, however, is based on the decedent's tort right.
96. See Cowgill v. Boock, 218 P.2d 445, 448 (Or. 1950) (holding that under the wrongful death statute, "we must test the instant cause by the same legal principles that would have been applicable if [the decedent right-holder], had he lived, brought an action against [the defendant] for personal injuries"). Oregon's approach in this respect conforms to the majority approach.
97. See supra Part II.
98. See supra Part III.
99. See RESTATEMENT (SECOND) OF TORTS § 912 (1979).
100. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931).
101. RESTATEMENT (SECOND) OF TORTS § 912.
102. See Williams, 127 P.3d at 1171.
103. See id. at 1170. For this reason, compensation is not appropriately measured in terms of the consumer's willingness to pay to eliminate the risk (WTP), a measure that yields compensatory amounts much lower than those based on the individual's willingness to assume or accept the risk (WTA). Even if income effects are held constant, the two measures significantly diverge when there are fewer substitutes for the good being risked.
104. See W. Michael Hanemann, Willingness to Pay and Willingness to Accept: How Much Can They Differ?, 81 AM. ECON. REV. 635, 635 (1991) (providing formal analysis proving this proposition). Life, of course, is one good for which there is no substitute. "[I]n the limit, WTP could equal the individual's entire (finite) income, while WTA could be infinite."
105. Id. at 635-36. When risk is measured with the WTP measure - the outcome when the right-holder would still purchase the product - the role of punitive damages is unlikely to include punishment for its own sake. The right-holder, like other consumers, would pay for the right to punish via increased product prices, and it seems unlikely that consumers value punishment in this way. Rather, consumers would employ punitive damages as a means of deterrence.
106. See GEISTFELD, PRINCIPLES OF PRODUCTS LIABILITY, supra note 53, at 51-58 (explaining why the ordinary consumer reasonably expects to receive tort damages only when the liability promotes product safety).
107. See supra Part III.
108. Outside of a "radically subjectivist" conception of risk, risk measures are objective in the sense that they require "relative frequencies that have been defined with respect to a certain class of persons" or some sort of epistemic conception of mutual acceptance to the concerned parties, such as "the probability judgments of a reasonable or representative person."
109. Stephen R. Perry, Risk, Harm, and Responsibility, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 321, 328, 329, 335 (David G. Owen ed., 1995) (emphasis in original).
110. Brief for the Petitioner at 4, Phillip Morris USA v. Williams, 127 S. Ct. 1057 (2007) (No. 05-1256), available at http://www.abanet.org/publiced/ preview/briefs/pdfs/06-07/05-1256_Petitioner.pdf.
111. Centers for Disease Control and Prevention, Smoking & Tobacco Use: Tobacco-Related Mortality, at http://www.cdc.gov/tobacco/data_statistics/ Factsheets/tobacco_related_mortality.htm (last visited Jan. 2, 2008).
112. Id.
113. Williams v. Philip Morris Inc., 127 P.3d 1165, 1168 (Or. 2006), vacated and remanded sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) (stating that the plaintiff's husband eventually smoked three packs a day).
114. See David R. Jacobs et al., Cigarette Smoking and Mortality Risk, 159 ARCHIVES OF INTERNAL MED. 733, 733 (1999) (finding that the "[a]djusted hazard ratio[] for all-causes death in smokers as compared to nonsmokers [was]... 1.8 ... for smokers of 10 cigarettes per day or more" in a study spanning twenty-five years).
115. Brief for the Petitioner, supra note 83, at 4.
116. See W. Kip Viscusi & Joseph E. Aldy, The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World, 27 J. RISK & UNCERTAINTY 5, 53-56 (2003) (describing how this approach is used by governments around the world).
117. See id. at 53.
118. U.S. ENVTL. PROT. AGENCY, GUIDELINES FOR PREPARING ECONOMIC ANALYSES 90 (2000) [hereinafter EPA GUIDELINES], available at http://yosemite.epa. gov/ee/epa/eermfile.nsf/vwAN/EE-0228C-07.pdf.
119. Id.
120. See supra notes 59-61 and accompanying text.
121. See EPA GUIDELINES, supra note 91, at 90.
122. See Viscusi & Aldy, supra note 89, at 50-53 (describing a variety of factors affecting VSL).
123. EPA GUIDELINES, supra note 91, at 76.
124. See also W. Kip Viscusi, The Value of Life: Estimates with Risks by Occupation and Industry, 42 ECON. INQUIRY 29, 33 tbl.1 (2004) (surveying VSL studies of labor markets involving risks ranging from approximately 1:100,000 to 45:100,000).
125. See Jacobs, supra note 87, at 733.
126. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 198-99 (6th ed. 2003).
127. See supra notes 84-87 and accompanying text.
128. See EPA GUIDELINES, supra note 91, at 90.
129. See supra notes 58-60 and accompanying text.
130. Williams v. Philip Morris Inc., 127 P.3d 1165, 1179 (Or. 2006), vacated and remanded sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007).
131. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (2003)) (citations and quotations omitted).
132. Williams, 127 P.3d at 1177.
133. See supra note 36 and accompanying text.
134. See State Farm, 538 U.S. at 419.
135. See Williams, 127 P.3d at 1168.
136. State Farm, 538 U.S. at 425.
137. Id. at 418.
138. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 460 (1993) (upholding a punitive damages award of $10 million in a case involving $19,000 of compensatory damages because the relevant disparity involves the potential loss to the right-holder that could have occurred if the defendant had fully succeeded in its wrongful scheme).
139. Romo v. Ford Motor Co., 6 Cal. Rptr. 3d 793, 811 (Ct. App. 2003) (holding that "the proportionality inquiry must focus ... on the relationship of punitive damages to the harm to the deceased victim, not merely to the compensatory damages awarded," thereby justifying a substantial punitive damages award in a wrongful death case in which the decedent's estate received no compensatory damages).
140. See supra Part IV.B (concluding that vindication of the tort right alone in Williams could lead to the $79.5 million punitive damages award).
141. See Philip Morris USA v. Williams, 127 S. Ct. 1057, 1063 (2007) (holding that "the Constitution's Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent");
142. State Farm, 538 U.S. at 423 (finding that the punitive award violated due process because "our review of the Utah courts' decisions [does not] convince us that [the defendant duty-holder] was only punished for its actions towards the [plaintiff right-holders]");
143. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 20 (1991) (holding that due process requires a "meaningful individualized assessment of appropriate deterrence and retribution"). See also Colby, supra note 40, at 623 (arguing that punitive damages must be limited to punishment of the individual rights violation in order to satisfy due process).
144. Williams v. Philip Morris Inc., 127 P.3d 1165, 1175 (Or. 2006), vacated and remanded sub nom. Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) (concluding that due process does not prohibit the jury "from using punitive damages to punish a defendant for harm to nonparties").
145. OR. REV. STAT. § 31.735 (2005) (formerly § 18.540).
146. DeMendoza v. Huffman, 51 P.3d 1232, 1243 (Or. 2002) (en banc) (citations omitted).
147. Id.
148. Id. See also Catherine M. Sharkey, Punitive Damages as Societal Damages, 113 YALE L.J. 347, 389 (2003) (explaining how punitive damages can be justified as a form of liability for social harms caused to right-holders other than the plaintiff).
149. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003).
150. See supra note 113 and accompanying text.
151. See supra note 40 and accompanying text.
152. See Polinsky & Shavell, supra note 35, at 914 (explaining why punitive damages that further the goal of deterrence should be based solely on actual harms caused by the tortious misconduct).
153. When applied across cases, this measure of punitive damages would force the defendant to fully internalize the cost of the tortious misconduct, thereby promoting optimal deterrence. See, e.g., Ciraolo v. City of New York, 216 F.3d 236, 245 (2d Cir. 2000) (Calabresi, J., concurring) (observing that "extracompensatory damages assessed in order to avoid underdeterrence" are designed to "ensure that all of the costs of the harmful acts are placed on the liable actor").
154. Polinsky & Shavell, supra note 35, at 915-16. In this passage, Polinsky and Shavell are only hypothesizing that courts apply the potential harm factor in this way. For reasons given in the text, this approach is fully justified as a matter of reprehensibility.
155. See supra Part IV.B.
156. Polinsky & Shavell, supra note 35, at 916.
157. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1064 (2007).
158. See supra Part IV.B.
159. DeMendoza v. Huffman, 51 P.3d 1232, 1243 (Or. 2002) (en banc).
160. See Williams, 127 S. Ct. at 1064.
161. See id. at 1063.
162. Id. at 1064.
163. Id. at 1065 (emphasis in original).
164. Cass R. Sunstein, On the Psychology of Punishment, 11 SUP. CT. ECON. REV. 171, 179-80 (2004) (citations omitted).
165. See Williams, 127 S. Ct. at 1065.
166. Sunstein, supra note 133, at 180-81 (citations omitted).
167. See Geistfeld, Due Process, supra note 61, at 333-47 (showing how the constitutional concerns that the Court has identified with respect to punitive damages practice fully apply to jury awards of compensatory damages for pain and suffering). For these same reasons, departures from the single-digit ratio are not justified as a means of respecting juror discretion whenever damages are inadequate and hard to measure. The unguided juror discretion is the rationale for the single-digit ratio, not a reason for departing from it.
168. But see Alexandra B. Klass, Punitive Damages and Valuing Harm, 92 MINN. L. REV. 83 (2007).
169. See BMW of N. Am. v. Gore, 517 U.S. 559, 582 (1996).
170. See Mark Geistfeld, Constitutional Tort Reform, 38 LOY. L.A. L. REV. 1093, 1114 (2005) (showing how the constitutional concerns the Court has identified with respect to punitive damages practice apply to a broad range of tort doctrines and arguing that constitutional tort reform can reduce overly vague tort rules).
171. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
172. Id.
173. Lauren R. Goldman & Nickolai G. Levin, State Farm at Three: Lower Courts' Application of the Ratio Guidepost, 2 NYU J. L. & BUS. 509, 511 (2006).
174. Philip Morris USA v. Williams, 127 S. Ct. 1057, 1061 (2007).
175. See, e.g., David G. Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 VILL. L. REV. 363, 406 (1994) (describing the issue as "the most momentous question as yet unresolved by the Court"). It is worth noting, however, that "the vast majority of courts that have addressed the issue have declined to strike punitive damages awards merely because they constituted repetitive punishment for the same conduct." Dunn v. HOVIC, 1 F.3d 1371, 1385 (3d Cir. 1993). For a thorough discussion of the issue, see Jim Gash, Solving the Multiple Punishments Problem: A Call for a National Punitive Damages Registry, 99 NW. U. L. REV. 1613, 1613-44 (2005).
176. Punitive Damages: A Constructive Examination, 1986 A.B.A. SEC. LITIG. REP. 71 (Report of the Special Committee on Punitive Damages).
177. See generally Geistfeld, The Analytics of Duty, supra note 53 (using this analysis to show why the right-duty nexus excludes compensation for pure economic or emotional harm).
178. See OR. REV. STAT. § 31.735 (2005) (formerly § 18.540).
179. For a survey of this literature, see Frederick S. Levin, Note, Pain and Suffering Guidelines: A Cure for Damages Measurement "Anomie," 22 U. MICH. J.L. REFORM 303, 321 nn.64-68 (1989).