George Will

     Justice Ginsburg, joined in dissent by Scalia and Thomas, opposed imposing ``under the banner of substantive due process," a cap on punitive damages. But it must be admitted that as policy, if not as constitutional law, the decision will have huge and desirable consequences from now on, and regarding some reckless punitive damage awards now being appealed, such as the $144.8 billion class-action award in Florida against the tobacco industry and the $290 million judgment in California against Ford resulting from an accident involving a Bronco.

     The case from Utah was the court's second stab in seven years at tort reform. In 1996 the court was provoked by the case of the $4 million four-inch tape line on a BMW.

     After driving his new car for nine months, an Alabama man learned that an almost invisible line indicated that the car had been repainted after it left the factory because of damage to the finish during shipment. Citing one person's opinion that a refinished car's value declines 10 percent, a jury awarded the owner $4,000 (the 10 percent) plus $4 million, based on $4,000 for each of the approximately 1,000 refinished cars BMW had sold throughout America in the previous 10 years.

     The Supreme Court found a constitutional violation in the ``grossly excessive" jury award--BMW's property was taken without ``due process of law." The jury award was capricious, hence unpredictable, hence lawless because the rule of law presupposes due notice of what consequences can be expected from particular behavior.

     However, if this theory was to be susceptible to principled application, the court had to provide criteria to measure capriciousness. So the court enunciated the Eyebrow Criterion. It ruled 5-4 that the substance of what the Alabama jury did raised ``a suspicious judicial eyebrow," which was somehow proof that due process was denied.

     The court propounded three sensible guidelines for determining when damage awards violate due process. What was not sensible was pretending the guidelines were emanations of the Constitution.

     Dissenting, Justice Scalia said the undeniable fact that juries awarding damages have ``run wild" did not justify courts running wildly beyond their proper role. Restricting juries' discretion by capping damage awards is for legislatures to do.

           Sometimes when the court has justified doing something legislatures have chosen not to do, it has said it was protecting ``discrete and insular minorities" that cannot defend themselves from an indifferent or hostile majority in the rough and tumble of politics. But the American public is not a minority and is not defenseless against the trial lawyers.

     If the public gets its dander properly up, the Democratic Party will no longer dare to prevent tort reform. Until then, courts should not try to tickle from the Constitution's text reasons to rescue the public from the inaction of its chosen and generally obedient representatives.

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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