Reviewing the law reviews.

Author:Youngdale, Elizabeth M.

Law Review Highlights:

The Supreme Court's ruling in Philip Morris v. Williams has had a profound impact on the law regarding punitive damages in the United States. Two law review articles and a student note have addressed the opinion itself as well as its ramifications in holding that punitive damages awarded to plaintiffs for injuries done to third-parties violate procedural due process under the U.S. Constitution.

In his article Clearing the Smoke from Philip Morris v. Williams." The Past, Present, and Future of Punitive Damages, Thomas B. Colby critiques the Court's reasoning behind its conclusion, but ultimately agrees with the outcome. (1) The author focuses on the historical use of punitive damages punishment for private wrongs--to argue that in that capacity punitive damages do not raise due process concerns. Mr. Colby contends that the recent trend of using punitive damages as a punishment for public wrongs does violate due process by not allowing the same safeguards afforded other types of punishment for public wrongs, like criminal prosecution.

Sheila B. Scheurman and Anthony J. Franze take a practical approach to the consequences of Philip Morris in their article Instructing Juries on Punitive Damages." Due Process Revisited After Philip Morris v. Williams. (2) The authors provide a short history of the Supreme Court's punitive damages jurisprudence, discussing how procedural and substantive due process limits have merged over time. Following an examination of Philip Morris, the article provides a survey of model jury instructions in federal and state systems. Finally the article suggests what substantive areas juries should now be instructed on in light of Philip Morris.

Punitive Damages and Due Process: Trying to Keep Up with the United States Supreme Court After Philip Morris USA v. Williams, a student note, attempts to explain the impact Philip Morris will have on the states' ability to impose punitive damaged. (3) In addition to providing an analysis of the Court's dealing with due process limitations on punitive damages, the author considers the practical effects the case will have on lower courts as they administer the new rule. The Note also addresses how the Court's ruling will interact with the interest states have in the power to award punitive damages.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International


Chris Bergen, Note, The Supreme Court Tightens the Purse Strings on Corporate Punitive Awards, 22 TUE. ENVTL. L.J. 141 (2008).

Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages, 118 YALE L.J. 392 (2008).

John Diamond, Rethinking Compensation for Mental Distress: A Critique of the Restatement (Third) [section][section] 45-47, 16 VA. J. SOC. POL'Y L. 141 (2008).

Michael G. Faure & Tom Vanden Borre, Compensating Nuclear Damage: A Comparative Economic Analysis of the U.S. and International Liability Schemes, 33 WM. & MARY ENVTL. L & POL'Y REV. 219 (2008).

Mathew Good, Non-Pecuniary Damage Awards in Canada--Revisiting the Law and Theory on Caps, Compensation and Awards at Large, 34 ADVOCS. Q. 389 (2008).

Courtney Abbott Hill, Note, Enabling the ADA: Why Monetary Damages Should Be a Remedy Under Title III of the Americans with Disabilities Act, 59 SYRACUSE L. REV. 101 (2008).

Goutam U. Jois, The Cy Pres Problem and the Role of Damages in Tort Law, 16 VA. J. Soc. POL'Y L. 258 (2008).

Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 CORNELL L. REV. 239 (2009).

Brandon T. Morris, Comment, Oil, Money, and the Environment: Punitive Damages Under Due Process, Preemption, and Maritime Law in the Wake of the...

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