Lochnerian Values, Mandatory Compensatory Damage Caps, and Lessons from the Sixth Amendment Jury Trial Clause

Abstract

The Court’s recent punitive damage award jurisprudence finds its origin in Lochner v. New York’s guarantee of substantive due process protection for economic rights. This jurisprudence (1) establishes a reasonable review for punitive damage awards and (2) sets the disparity between punitive awards and compensatory awards for economic and noneconomic damage as the one of the starting points for determining whether the punitive award is reasonable. In so doing, the Court explicitly presumes the plaintiff has received full compensation for actual and concrete losses. This presumption is false as it applies to States that have imposed caps against compensatory damage awards in personal injury cases. Most caps were initially intended to reign in “excessive” civil jury verdicts, which had allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no cap is triggered by a preliminary finding of excessiveness. Moreover, trial judges are stripped of authority to determine whether application of the cap is just or fair to the (often) severely injury plaintiff. Unlike most works on this subject, this Article investigates the impact of compensatory damage caps on the Court’s reasonable review of punitive damage awards. This Article discusses state laws that mandate fixed or capped damage awards in medical malpractice and other tort cases. This Article also discusses the State Supreme Court split on whether compensatory damages caps encroach upon state civil jury trial rights, which like their federal counterpart find their interpretative basis in the English common law. All States recognize the historic origin of the civil jury trial right. Yet even among States with identical civil jury trial clauses an analysis of State Supreme Court jurisprudence leads to a stalemate about the nature and scope of the right to a civil jury. State Supreme Courts also conflict on whether legislative authority exists to alter a jury’s determination of the value of an injury in common law cases. This Article offers a novel approach to compensatory damage caps by turning to the Sixth Amendment Criminal Jury Trial Clause, which has recently questioned whether legislative authority exists to remove the jury from the sentencing process. This jurisprudence offers three lessons about jury trial rights: first, modern procedures cannot significantly alter certain common law characteristics of the jury trial right; second, mandatory removal of the jury as the primary fact-finder was not authorized in common law cases; and third, a common law jury’s factual determinations were fully enforceable unless exceptional circumstances were presented. This Article concludes by applying these lessons to compensatory damage caps. This Article urges adoption of cap alternatives that encourage individual review upon necessity. Such alternatives should also advance the States’ dual interests to protect both civilly liable defendants from unreasonably high awards and severely injured plaintiffs from unreasonably low awards.