Compared To What?

In comments to this post, I’m afraid that regular commenter Anderson has fallen for the old conservertarian bait-and-switch:

Yeah, quite frankly, I think punitives are a terrible idea in general — they take what should be a policy issue & make it a judicial one. And it makes no sense for the plaintiff to collect the punitives, except of course for the unspoken assumption of a 40% or more contingency fee.

It’s not, exactly, that I disagree with him. The punitive damage system does lead to arbitrary windfalls to individuals to provide broader incentives, and on balance I would prefer the European regulatory model to the American system, which relies more heavily on torts to constrain injurious corporate behavior (although obviously the more bureaucratic model also comes with costs.) But I don’t see how any of this is relevant to the question of whether the due process clause should be read as limiting punitive damages:

• Arbitrarily limiting damage awards based on how many of his fingers Tony Kennedy decides to count on a given day doesn’t solve the windfall problem; it just reduces the disincentives for bad behavior.
• It’s not as if Roberts, Alito and Kennedy are voting to limit damage awards to that the U.S. can move closer to the European system of regulating corporations. As soon as regulations to replace a less effective tort system are proposed, Republicans will immediately start talking about how the genius of the American legal system means we don’t need more regulations.
• Most importantly, when construing whether the due process clause limits punitive damages, surely we must consider the issue in the context of the American state as it actually exists, not some pony state we would actually prefer instead. Whether it’s optimal or not, punitive damages are a major method for constraining behavior that is ccontrary to the public interest in the American system. If legislatures want to limit punitive damages–whether to move to a more bureaucratic model of (much more likely) to make it easier for corporate donors to injure people without consequences–that’s their privilege. But I don’t see any basis for using a (to put it mildly) highly contestable reading of the Constitution to limit damages in the hope that a better system might spring up in its place.

The BMW v. Gore line of cases should be overruled, and the latest (to borrow Stevens’s phrase) adventure in doctrinal wonderland just makes the rules more confusing for no good reason.