Friday, February 23, 2007


The Supreme Court has decided (in the case of Philip Morris USA v. Williams) that the due process clause prohibits calculating punitive damages based upon harm caused to strangers to the litigation. The closeness of the vote reflects that there are valid arguments on both sides of this issue.

Let us assume that someone has been killed as the result of a defective tire. In the first law suit, the manufacturer learns that the tire is defective. Nonetheless, it continues to manufacture the tire and 100 more persons are killed as a result. Should not the company suffer a greater punishment with each new death? The more deaths; the more egregious the conduct to be punished. Therefore, it would be wrong not to consider harm to others so long as there was adequate proof of the prior deaths and their cause. The purpose of punitive damages is to punish past and deter future wrongful conduct. The continuance of that outrageous conduct in the face of knowledge as to its harmful consequences should certainly serve as one of the bases for calculating punitive damages. The prior conduct and record of a criminal defendant is considered in deciding the severity of punishment, even though the defendant may have already suffered punishment for those prior crimes. Why should it be any different in meting out punishment in a civil matter in which punitive damages are warranted?

But now let us assume that at several trials brought on behalf of those who have died from the defective tire, each jury is told about the 100 deaths as a basis for calculating punitive damages. Each then would be punishing the manufacture for the same 100 deaths. Therefore, it would be wrong to consider harm to others if it resulted in repetitive punitive damage awards for the same conduct and harm.

I wrestled with this very issue in 1989 in the case of Juzwin v. Amtorg Trading Co., 705 F. Supp. 1053, and concluded that multiple awards of punitive damages based upon injuries to others violated the due process clause, the only decision I ever made that was praised by the Wall Street Journal. Despite that praise, I eventually and unilaterally withdrew the decision, concluding that I did not have the power or authority to effectuate such a decision---that it required the Supreme Court or the Congress to do so. The Supreme Court has now spoken, but I continue to have the same concerns expressed above. The ability of citizens to punish others for outrageous conduct in instances in which government cannot or will not is a power worth preserving, but it is essential that guidelines be established so as to lead courts through this current quagmire.

Saturday, February 17, 2007


One of the fans of my blog (maybe the only one) suggested that I write about the Anna Nicole Smith case, and I responded that I could not conceive that there was anything left to say about it, but I was wrong. Justice Anthony Kennedy recently appeared before the Senate Judiciary Committee making the repeated and wholly justified (and usually ignored) plea for greater compensation for federal judges. He was diverted from his topic by Senator Specter who again raised the spectre of televising Supreme Court arguments.

Over the years I have been ambivalent about the televising of court proceedings. I recognize the usual arguments about the potential effect upon witnesses, jurors and possibly judges, but I have seen studies that suggest that the presence of the courtroom camera is soon forgotten and its effect minimal. On the other hand, although not a regular watcher, I have caught glimpses of the TV judges---rude, impolite, snide and impatient, rendering decisions from the hip, and fear that the public has come to conflate them with our real judicial system.

I can certainly understand Senator Specter's position. Wouldn't it have been marvelous for the country to see and hear live the arguments in a case that decided who would be President of the United States? Justice Kennedy is properly concerned about the single sound bite at the end of a session, but doesn't that same risk exist with the print media? And at the trial level, the country should be able to observe the "Scooter" Libby trial, one that so clearly demonstrates the workings of the current administration. But I also thought that showing the O.J. Simpson trial was the right decision, so that when he was convicted, the African-American community would have had the opportunity to observe the fairness of the trial.

Televising court proceedings might also serve to deter the real judges who are rude, arrogant and impatient and at the same time demonstrate the respect and fairness usually displayed by most judges serving throughout this country. I have always believed that how the litigants and lawyers are treated is as important as the decision reached. Every case will have its losers. How they feel about their treatment during the process is the true test of the system.

And that brings me back to where I started---the Anna Nicole Smith case. All of the positives things that I thought televised court proceedings might bring to educate the public and engender respect for our judicial system were eradicated watching the Florida proceeding, which was to determine where Ms. Smith was to be buried. I don't doubt the Florida judge's good intentions, but I thought that I was watching a poker game in someone's basement. Lawyers were arguing directly with each other. Witnesses were testifying from a variety of chairs or standing. It was difficult to tell who were the witnesses and who were the lawyers. The judge, despite his oft repeated desire to maintain the dignity of the deceased and the proceeding, seem to do everything to accomplish the opposite while expanding the scope of the proceedings well beyond the issue presented and probably beyond his jurisdiction as well. I suspect to the public this case is already part fact and part fiction, but for the dignity of our court system, I would love to see that TV plug pulled.

Sunday, February 4, 2007


My conservative, former college roommate wrote to express his enjoyment at reading my blog, but suggested that I should try to be a little less critical and focus on some of the more positive things happening in the world. I conceded to him that my current writings were somewhat motivated by the years of mischaracterization and misinformation that were frequently used to describe my opinions, while I served on the court. Indeed, the same old chestnuts were roasted the day my first blog entry was published. Senator Obama in his new book, The Audacity of Hope, relates an incident where the mere change of a line in a speech about Lincoln brought down the wrath of the conservative world---suggesting that he was comparing himself to Lincoln.

In that same vain, I had intended to write today about the Supreme Court's decision in the case of Cunningham v. California, but I couldn't help but consider what the famous conservative voices would have done to me or any other judge they considered liberal in a decision that overturned the sentence of a man "tried and convicted of the continuous abuse of a child under 14".

But that aside, and following my roommate's advice to look on the bright side, the Cunningham decision, which requires a jury rather than a judge to find facts beyond a reasonable doubt in order to enhance a sentence under California law, is a recognition by a number of conservative Justices (including Chief Justice Roberts, Justices Scalia and Thomas) of the continued power and viability of the Sixth Amendment. Their presence in the majority may account for the lack of outcry from the conservative world, its failure to focus on the heinous nature of the crime or charge "soft on crime"---its usual practice when the Constitution serves to protect those charged or guilty as evildoers.

How the decision will play out remains to be seen. Many defendants will not want facts relevant to sentencing only presented during the guilt phase for fear of its spillover effect. Bifurcation may be needed frequently; thus extending the length of trials and jury service.