The Brigham Young University Law Review will publish an article written by Jill Lens, assistant professor of law at Baylor Law School, in Issue I of the 2012 volume. The Article is titled "Procedural Due Process and Predictable Punitive Damage Awards" and can be accessed at papers.ssrn.com/abstract=1903882. Baylor Law student Hailee Amox served as research assistant on the article.
The paper's abstract is:
In Exxon Shipping Co. v. Baker, the Supreme Court's most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their "stark unpredictability." To fix this real problem, the Court abandoned all hope that common law jury instructions can produce predictable punitive awards. Instead, the Court suggested pegging the punitive damage award to the compensatory damage award. Analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding.
Exxon should not be overlooked, however, as it signals a resurgence of procedural due process, a basis of challenging punitive damage awards that the Court has not heard since the early 1990s. Predictability of the amount is no different than notice of the likely severity. If common law jury instructions cannot produce predictable punitive damage awards, they also cannot produce awards at a level of severity of which a defendant has fair notice. Unfortunately, the Court's Exxon pegging solution to achieve predictability (i.e., awards at a severity level of which a defendant has fair notice) will be unsuccessful because of its reliance on compensatory damages, which are inherently unpredictable. As an alternative, this Article suggests looking to restitution, a non-controversial punitive, civil remedy. Similarly basing punitive damages on the defendant's gain would produce predictable awards--as procedural due process requires.
One of Baylor Law's newest faculty members, Lens received her J.D. from the University of Iowa College of Law, where she served as Note & Comment Editor of the Iowa Law Review. She graduated with highest honors, received the West Publishing Company Award for Outstanding Scholastic Achievement, and is a member of the Order of the Coif. After graduation, she practiced commercial and appellate litigation and later accepted a position as a Visiting Assistant Professor at the University of Louisville Brandeis School of Law.
Lens joined the Baylor faculty in 2010 and teaches torts, products liability, and appellate advocacy and procedure. Her prior publications address compensatory and punitive tort damages.