O Contraire, SCOTUS, Punitive Damages Are Constitutional

An analysis of why the Supreme Court continues to thrash and slash punitive damages, when there is nothing in the Constitution about them. Here is an excellent, recent law review article from the University of Florida Law Review.

Punitive damages are damages are those damages not awarded in order to compensate the victim – plaintiff -- but in order to punish, reform, or deter the wrongdoer (also known as the “tortfeasor”) and similar persons from pursuing a course of action such as that which damaged the consumer.

Punitive damages are often awarded in addition to compensatory damages, which are the form of damages applied to make a consumer whole.

Because they usually compensate the plaintiff in excess of the plaintiff's provable injuries, punitive damages are awarded only in limited circumstances, where, for example, the consumer-victim can prove that the defendant's conduct was willful, wanton, or reckless.  

Punitive damages are a settled principle of common law in the States. How these damages are awarded vary from State to State. Along the way, starting in 1996, the Supreme Court of the United States decided that, despite the fact that punitive damages are never mentioned in the Constitution, and are soundly within the rights of States and juries under the Seventh, Ninth, and Tenth Amendments to the Constitution, that punitive damages are now  subject to due process of law clauses of the Fifth and Fourteenth Amendments to the Constitution.

Liberal, moderate, and conservative judicial activism is in full swing. Notably, Justices Thomas and Scalia have repeatedly found that punitive damages are issues that should be left to the States.