Bench Memos

NRO’s home for judicial news and analysis.

Mea Maxima Culpa


The other day I read Robert Alt’s New York Post piece on how much worse we could do than Justice Souter, and my gaze fixed on these lines:

In the area of lawsuit abuse, Justice Souter provided the fifth vote just last term in a majority opinion in the Exxon case, which limited excessive punitive damages under maritime common law. Punitive damages are a favorite weapon of trial lawyers, who greeted Souter’s opinion with some disdain.

Like the old warhorse to the sound of the bugle, I rose to say something here about Souter’s willingness to limit damages under the due process clause.  But my memory of the Exxon case was too vague and my attention too careless, for “under maritime common law” is quite a different thing.  So when I wrote, “unlike Robert, I cannot applaud” Souter’s penchant for finding due process limits on punitive damages, the offending words “unlike Robert” justifiably set Robert’s teeth on edge.  He justly upbraided me, and I responded to him too snippily.  The truth is that, writing quickly and carelessly, I drew an unwarranted inference about Robert Alt’s views, and for that I apologize to him.  Better late than never, I hope.  And for the sake of what passes for posterity on the web, my two posts from earlier this week will now carry links to this one.


Sign up for free NRO e-mails today:

Subscribe to National Review