Krauss in Investor's Business Daily: Oregon's Defiance Invites Supreme Court Ruling on Punitive Damage Limits

The refusal of Oregon's high court to alter a tort award after twice being "invited" to do so by the U.S. Supreme Court begs the question of whether the Supreme Court will clearly declare limits for punitive damage awards, says Professor Michael Krauss, writing in Investor's Business Daily.

In the Oregon case, the jury awarded the widow of a long-time smoker $79.5 million in punitive damages in a suit against Philip Morris. Oregon was asked to reconsider its decision in view of the Supreme Court's rulings in both BMW v. Gore and State Farm v. Campbell, but refused to do so in defiance of the Court.

Time for Court to Settle War Over Punitives, Investor's Business Daily, February 20, 2008. By Michael I. Krauss.

"Oregon's high court presumably hopes the Supreme Court will now blink. Recall that the Supremes have never clearly declared limits for punitive damages. Campbell, a 6-3 decision, came close. However, two in the Campbell majority (Rehnquist and O'Connor) are gone, while two others (Stevens and Breyer) conceded in Williams that enormous punitive awards can be justified.

"Only two 'Campbell' justices (Kennedy and Souter) appear ready to find strict limits for punitives — an insufficient number even if Roberts and Alito join them. The Williams majority's hair-splitting 'consider but do not consider' rule for third-party harm reflects its collective indecision.

"One Williams dissenter, Justice Stevens, did advocate a principled constitutional mechanism — to declare that punitive damages are fines limited by the Eighth Amendment. Alas, there is no sign that a majority will sign on to Stevens' reasoning.

"Oregon's latest belligerence is a pressing invitation to the Roberts court to clean up the conceptual mess that is its punitive damages jurisprudence. Only when it speaks clearly will the court be both understood and obeyed — even in Oregon."

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