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Publication Date

Fall 2007




University of Texas, School of Law




This essay is a series of reflections on the implications of Philip Morris for the tort reform movement, a movement for which I share considerable sympathy. First, I offer an ideal approach to punitive damages-based on my amicus brief in Philip Morris-and apply that approach to the case. I make an effort to find a middle ground between the positions of the plaintiff and defendant because, in any case that reaches the Supreme Court, one will find persuasive arguments to be made on both sides. That middle ground involves largely returning to the Supreme Court's pre-Gore treatment of punitive damages and introducing new procedural devices for defendants to challenge awards. Second, I examine some of the troubling implications of Philip Morris, such as the possibility that class actions are unconstitutional under its theory of due process. Finally, I close with a few observations on the implications of this case law for pain and suffering awards. The likely eventual outcome of decisions such as Philip Morris and State Farm will be a constitutionally-based requirement for the scheduling of pain and suffering awards.

Part II summarizes the case. In Part III, I lay out an ideal approach to punitive damages based on the arguments I have made in briefs to the Supreme Court in the major punitive damages cases. I invest more effort here in attempting to address the concerns of defendants than was possible in the briefs. In Part IV, I apply this approach to the facts of Philip Morris. In Part V, I discuss the approach used by the Court in Philip Morris. In Part VI, I discuss the troubling implications of Philip Morris, and Part VII concludes.


Updated with published version of paper on 9/24/22

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