Bench Memos

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Re: Moving the Court Further Left--Alt’s Umbrage


I am glad to stand corrected about what Robert Alt does and does not approve in the jurisprudence of Justice Souter.  Yes, I have read the Exxon Shipping case, though I have not reread it recently; and yes, it rests on principles of maritime common law, not constitutional principles of due process.  But it remains true that Justice Souter was part of recent majorities engaging in “incantations over the due process clause” to limit punitive damages–the very sort of thing that earned him a soft spot in the hearts of some business interests.  Souter made the distinction Alt notices, but as Justice Scalia (joined by Justice Thomas) notices in his one-paragraph Exxon concurring opinion, Justice Souter saw fit to associate (perhaps gratuitously) the due-process cases with this one–an association to which Scalia objected.  Not keeping current with the Alt oeuvre, I was unaware that Robert too was inclined to lodge the same objection.  Now I know, and I thank him, both for the information and for the agreement.

UPDATE: Please see Mea Maxima Culpa.


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