Matthew Franck writes that “unlike Robert, I cannot applaud the view of Justice Souter (and the Court’s majority in recent years) that incantations over the due process clause can legitimately produce judicially-imposed outer limits on the award of punitive damages.” The funny thing is, I never said that. I applauded Souter’s decision in Exxon Shipping Co. v. Baker, a maritime common-law case (where judicial limitations on punitives is eminently appropriate), not BMW v. Gore, a constitutional due-process case (where the court erroneously read limitations on punitives into Due Process). Either Franck mistook one case for the other, or he has not read Exxon, which is crystal clear in stating that it is not a due process case:
Today’s enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process . . . . Our review of punitive damages today, then, considers not their intersection with the Constitution, but the desirability of regulating them as a common law remedy for which responsibility lies with this Court as a source of judge-made law in the absence of statute.
But even if he has not read Exxon, this should have been clear from my article, which stated “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.” (emphasis added)
And so, Franck and I agree that the Due Process Clause properly read does not speak to punitive damages. Now perhaps he will agree with me that, contrary to his ill-founded accusation, I never said anything to the contrary.