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View Diary: What Is The Supreme Court Doing Deciding How Much Is Too Much for Punitive Damages? (22 comments)

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  •  Well, one of the most hated (2+ / 0-)

    justices here, i.e. Antonin Scalia, has dissented in these cases and argued that these made-up limitations on punitive damages are nowhere to be found in the Constitution and are invention of the judges.  (Justice Thomas, btw, also joined the dissent).

    However, what has to be recognized is that this is precisely what you get when you concede to the judges the ability to create new rights.  When you do that, you can end up with "rights" that you happen to like (e.g., right toprivacy), but you will also end up with "rights" that you dislike (e.g., right to be free from excessive punitive damages).  You have to take the good with the bad.  Or else, get judges out of the business of creating rights whenever they think that the new right is a good idea.

    •  Doesn't the 9th Ammendment Say That Rights Simply (1+ / 0-)
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      exist and mean effectively that government and judges cannot destroy rights?

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Wed Oct 25, 2006 at 09:24:55 AM PDT

      [ Parent ]

      •  Not quite (1+ / 0-)
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        Ninth Amendment is simply a statement that there may be other rights out there that are not based on teh COnstitution.  

        No one ever doubted that proposition.  Sure there are otehr rights out there beyond federal constitutional rights.  Those maybe created by statute, by state Constitutions, by custom, etc.  

        Second, Ninth Amendment speaks of "retained" rights.  I.e., rights that are held by the people at the time Ninth was adopted. Retained is defined as

        1. to keep possession of.  
        1. to continue to use, practice, etc.: to retain an old custom.  
        1. to continue to hold or have

        In other words in order to retain something, you must already have it.  Which in turn means that the Ninth Amaendment cannot be invoked to create rights that people never actually had up until the case sub judice came up.

        •  But if the people (0+ / 0-)

          already had the right to unlimited punitive damages at the time the Constitution was adopted, then no new right is created by refusing to adopt caps now; whereas the right to privacy, which I would argue long pre-existed the Constitution, was not "created" by the Court, but was simply honored.

          It is the folly of youth to think they can change the world; it is the folly of old age not to try. -- Winston Churchill

          by penguins4peace on Wed Oct 25, 2006 at 10:14:10 AM PDT

          [ Parent ]

          •  Well the problem is that (1+ / 0-)
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            no one thought at the time that there was a generalized constitutional right to privacy.

            And even if they did, certainly no one thought that the right included abortion and certain sexual conduct.  

            So even if I conceded that the right to privacy pre-existed the Constitution, it does not follow that the "new" rights under the right to privacy include all of the controversial rights recognized by SCOTUS.

            Secondly, rights don't exist in the vacuum.  Our Constitution did not adopt Natural Law or Divine Right to ___.  Rights exist pursuant to some document, be it the Constitution, statutes, custom, etc.  Thus, again, even if right to privacy pre-existed, it does not mean that the Constitution mandates that it continue to exist.  Nor does it mean that the right to privacy is a constitutionally based right.

            As to punitive damages, I agree.  The prohibition on excessive damages is pure judicial invention with no basis in the text, history, or intent of the Constitution.

    •  Interesting concern (0+ / 0-)

      Is there perhaps a way to evaluate good vs bad "new rights: as you describe them?

      •  Yes there is (2+ / 0-)
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        penguins4peace, SassyFrass

        And that way is called voting.

        People are more than capable of deciding "good" and "bad."  So let tehm do it.  Letting judges do it simply invites chaos and intellectual dishonesty.

        The punitive damages issue is a case in point.  Many, I am sure, think that limiting punitive damages is bad, because it prevents us from expressing our outrage at corporations.  Others, I am sure, think limits are good because it prevents "jackpot justice" and potentially keeps consumer prices down in the long run (thus having a positive impact on the economy).  I think the weighing should be done by the people, and not by judges.

        •  What is jackpot justice? (0+ / 0-)

          Can you explain what that is?


          •  Jackpot justice means that (2+ / 0-)
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            penguins4peace, SassyFrass

            we have 2 identical or very similar cases and happen to try them in 2 different counties.

            One county (for a number of reasons) happens to be more favorable to the plaintiffs.

            So at the end of two (identical) cases, one plaintiff ends up with $100M verdict and another with $100K verdict.  That isn't "justice," it's a lottery.

            •  Yes, but imagine for a moment (0+ / 0-)

              a criminal defendant who is charged with a murder that (e.g., committed in a moving vehicle) crosses county lines.  Do you not think the prosecutors would choose to proceed in the county with jurors more likely to convict?  And perhaps impose the death penalty?  If this kind of "jackpot justice" is acceptable when dealing with human life, why is it not acceptable with corporations?

              It is the folly of youth to think they can change the world; it is the folly of old age not to try. -- Winston Churchill

              by penguins4peace on Wed Oct 25, 2006 at 10:20:57 AM PDT

              [ Parent ]

              •  That kind of a desparity (0+ / 0-)

                was meant to be addressed by the sentencing guidelines.  (At least on the federal level, and in some states).  That way, similar crimes receive similar punishments.

                As for the death penalty, that too is a result of SCOTUS's "creativity."  It used to be that death penalty was mandatory for certain crimes.  SCOTUS said that that is unconstitutional.  So they created the unbounded prosecutorial discretion in these matters.  (Again, that does not mean that I endorse mandatory death penalty as a policy matter, but the blame for the disorder in the system should be laid at SCOTUS's door).

            •  Well let's go further (0+ / 0-)

              What if it is true that jurors selected from one area are more likely to give a verdict or an award amount, doesn’t this simply mean you are being judged by a jury of your peers. The question becomes how are your peers defined, and what venue are you in/ can you get transferred.

              That's a debate about the rules of transfer, not really about juries.

              In any event, ignoring all that I just said above, the solution can't mean eliminating punitive damages.

              Punitive damages are actually very rarely rewarded in cases that go to trial, and few cases ever even go to trial.

              •  Please understand, that I am not (0+ / 0-)

                arguing for the elimination of punitives.

                I oppose these types of decisions by the federal courts constitutionalizing something that was never meant to be addressed by the Constitution.  

                If people want to limit punitives as an exercise of their policy-making powers, let them.  But don't tell me that there is some constitutional prohibition on large punitive awards.

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