Two by Lens

Jill Lens has posted two pieces to SSRN.  First, An Undetectable Constitutional Violation; the abstract provides;

In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.

Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin to try to apply Philip Morris’s reprehensibility-punishment distinction. The Article then both criticizes the protection most lower courts have used—vague limiting instructions—and suggests alternative protections. A new rule governing the admissibility of nonparty harm should be used because of the constitutional implications of the admission of the evidence. Courts should also include explanations within their limiting instructions and aggressively review awards for possible Philip Morris violations despite the use of limiting instructions.

Second, Justice Thomas, Civil Asset Forfeitures, and Punitive Damages; the abstract provides:

For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.

This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction. 

The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.