109 Iowa L. Rev. Online 46 (2024)



In a series of cases in the early 1990s, the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment implicitly enabled federal courts to review state punitive damages awards for unconstitutional arbitrariness and excessiveness. Before settling on the Due Process Clause as the basis of federal regulation of punitive damages, in a 1989 decision the Court considered and rejected the claim that the Excessive Fines Clause of the Eighth Amendment, as incorporated into the Fourteenth Amendment, could provide the constitutional foundation for federal regulation of state punitive damages awards. The reasoning in this earlier case, rejecting the application of the Excessive Fines Clause to punitive damages, was never very convincing, and its authority has been weakened substantially by later cases.

In 2022, in overruling Roe v. Wade in Jackson Women’s Health Organization v. Dobbs, the Supreme Court strongly rejected the claim that the Fourteenth Amendment Due Process Clause could ever be invoked to substantively validate the assertion of a constitutional right not expressly granted somewhere in the U.S. Constitution.

This Essay first closely examines the reasoning of the Dobbs decision and concludes that the language in the majority and concurring opinions limiting the scope of the Due Process Clause seriously threatens the constitutional underpinnings of current federal court regulation of state punitive damages awards. Positing that continued reliance on the Due Process Clause for constitutional authority to conduct this regulation may become untenable after the Dobbs decision, this Essay takes a hard second look at the Excessive Fines Clause as a possible alternative constitutional source for federal judicial power to regulate state punitive damages awards. In reconsidering possible reliance on the Excessive Fines Clause for this purpose, this Essay considers the persuasiveness of a 1995 article proposing “a pragmatic approach” to interpretation of the Eighth Amendment as it applies to punitive damages, along with the relevance of two post-1989 cases enforcing the Excessive Fines Clause against in rem forfeitures. The core of this Essay, however, primarily addresses the key question of whether civil punitive damages paid to a private party should qualify as a “fine” under the Excessive Fines Clause.

This Essay also considers the advantages, after Dobbs, of having express constitutional language, such as the Excessive Fines Clause, as the source of federal judicial authority to regulate state punitive damage awards. This Essay concludes that switching the constitutional basis to the Excessive Fines Clause would be a superior framework to continue federal court regulation of state punitive damages awards. Finally, this Essay argues that much of the past thirty years of punitive damages jurisprudence developed under the Due Process Clause could easily be absorbed and carried forward within the “disproportionality” analysis now routinely applied in Excessive Fines Clause cases.

Monday, February 5, 2024