Due Process and Punitive Damages: An Economic Approach

Authors

Keith N. Hylton, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Spring 2008

ISSN

1934-4473

Publisher

Charleston School of Law

Language

en-US

Abstract

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower courts to distinguish takings from punishment consistent with reasonable regulation. This paper suggests general guidelines for developing such doctrines.

Comments

Updated with published paper on 9/23/22

Working paper available on SSRN

Recommended Citation

Keith N. Hylton, Due Process and Punitive Damages: An Economic Approach , in 2 Charleston Law Review 345 (2008).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/690