So here's a question this morning while we all wait for Justice Scalia to confirm that the 2d Amendment confers an individual right: if you're going to squawk relentlessly about judicial activism, shouldn't that squawking extend to cases in which the Supreme Court sets aside jury determinations on punitive damages (as it did in Exxon Shipping Co. v. Baker, USSC No. 07-219)?
That is, unless you only complain about judicial activism when it suits your purposes. Is a tiny little bit of intellectual honesty too much to ask?
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Give the man a little credit. He’s hoarse (though not reduced to hand gestures). As his concurrence in Exxon indicates, Scalia has consistently criticized ‘substantive due process’ limits on punitives in BMW and State Farm.
Court-made substantive law in admiralty cases is another kettle of fish – whatever you may think of Souter, Scalia et al.’s notions of what a proportional remedy is for Exxon, or what a case of no “exceptional blameworthiness” is. Cold comfort for the Exxon plaintiffs, but at least Congress is free to alter the rule, for future cases. In the long run, maybe if huge punitive verdicts are going to be enforced, it isn’t too much to ask the Congress to take the responsibility of expressly authorizing them?
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