The torts professor at a cocktail party of lawyers will be pestered with numerous memorable cases: Palsgraf, Summers v. Tice, Vincent v. Lake Erie, and Vosburg v. Putney, to name a few. If any subject is full of hard cases, it is torts. Indeed, I think torts is much easier to remember by its hard cases than by its bad law.

Part of the value of a contemporary Torts conference lies in the opportunity it provides to identify the new hard cases of tort law, the chestnuts in the making. We ought to be on the lookout for cases with gripping and memorable facts, with strikingly sympathetic or unsympathetic litigants, that illustrate a legal dilemma in a manner that makes both sides of the debate bristle with self-confidence and yet leaves many reasonable students and academics agape with uncertainty. We value these cases not just for the permanence of the imprint they make on the mind, but for the particular kind of dialectic they stimulate both in the first-year classroom and in the highest appellate courts.

My number one entry for "best new chestnut" is BMW v. Gore. A rich doctor bought a $40,000 BMW whose only flaw was cosmetic and invisible. However, because he happened to spend more money on the BMW to get it souped up, he learned that it once had had a scratch that had been painted over and rendered invisible to him. Upset at the failure of BMW to disclose this fact to him prior to purchase, he sued for fraud under Alabama law. Because of this invisible scratch, Gore won a jury verdict of $4,000 in compensatory damages and, by virtue of a pattern of similar behavior by BMW across the country, four million in punitive damages against BMW. The trial court entered judgment and the Alabama Supreme Court affirmed, with a reduced punitive damages award of 2 million dollars. BMW filed a cert petition that was granted, and argued that this award was excessive and violative of the U.S. Constitution. For a 5-4 majority, Justice Stevens reversed, but did not rely on the eighth amendment or on any particular defect of Alabama civil procedure, simply finding that there were notice difficulties implicating the 14th amendment's due process clause for a verdict that was so excessive relative to plausible guideposts of reprehensibility, proportionality, and comparable sanctions. Justice Breyer added a nuanced concurring opinion, and Justice Scalia dissented bitterly with characteristic bravado. Rounding out the law professors treat is a surprise pairing of Ginsburg and Rehnquist, respectfully but forcefully asserting that the court should restrain itself, and let other branches of government solve the mounting problem of punitive damages.

Gore is a great case for many other reasons. It is, as a practical matter, a case of tort reform; a case where interest groups who have lobbied tirelessly before state legislatures, executives, and judiciaries, and before Congress and the President, have wound up with a surprise victory in the institution they may have least expected: the Supreme Court. It is a case crossing state law with federal law, and in particular crossing state tort law with federal constitutional law, immersing us in a whole new world of hybrid cases. Additionally, within constitutional law and American politics itself, it is of course, profoundly ironic, for, as Scalia himself remarks, it appears to be yet a new chapter of the substantive due process deplored by the right, and yet it is all put in service of an ambitious campaign of law reform being waged by and on behalf of corporate America.

In each of the foregoing respects, Gore has the hallmarks of a chestnut. But what really confers that rare status on the decision is that, like Palsgraf and Vincent, it is a hard case in the sense that really should matter most to students and legal theorists. These are all hard cases facts suggests an intuitive judgment, but our "reach" to that judgment exceeds our "grasp" of the principles that would explain it. The structure of legal principles in question seem to line up in a way that points the direction of one outcome, and yet the decision to be made at a more contextualized level may point in the other direction. In the heyday of Langdellians, I think that these sorts of cases were believed to illuminate the structure of the law, much as the thought experiments of the philosopher are meant to yield philosophical truths. I have, myself, spent a good deal of energy rejecting Langdellian formalism as a jurisprudential matter. But I nevertheless think a focus on chestnuts can be illuminating both in our teaching and our research. And I think that Gore is a great case, most of all, for this reason. In what follows, I will depict a conceptual puzzle in Gore, and I will use the puzzle as a device to reach, I hope, a new plane of understanding of punitive damages, and of tort law more broadly.

It will be useful to separate three themes in the case: (1) a torts theme; (2) a jurisdictional theme; and (3) a due process theme. The structure of the paper will be as follows. In Part I, I will present a critique of the majority decision. The gist of this discussion is that, while there is a powerful argument that a state appellate court would have been on strong grounds in deciding to remit the jury's award well below $2,000,000, the Supreme Court was on jurisdictional and substantive thin ice in attempting to justify its striking of the award on grounds of due process. In particular, Justice Stevens' claim that in the award in Gore was constitutionally defective as a matter of notice and procedure turns out to be extremely weak. On its own terms, then, Gore is a hard case making bad law: the facts for BMW are gripping, but the court can only reach out to those facts by distorting due process analysis in a way that is ultimately unconvincing.

Having critiqued Gore's stated rationale in Part I, I will proceed in Part II to suggest that the Court need not have left its decision on such a vulnerable ground. The premise is in the due process theme; that this is a case that it is entitled to the immunity from procedural due process scrutiny that attaches to cases in which courts enforce a judgment in private litigation between two parties.[g1] That raises the question of why concepts of punishment triggering full-fledged due process scrutiny have not been generally applied to civil litigation between private parties. A purely historical argument will not suffice here, I argue. We also need an explanation of the justificatory structure of the distinction between the two. But once one pushes for this distinction, one raises the question of whether the Alabama punitive damages law exemplified in Gore fell squarely within the immune zone. And one then raises the possibility that the jurisdictional theme in Gore is in fact the difficult one, not the easy one. The difficult issue in the case is ascertaining whether the judgment in question implicates a form of law that triggers non-civil due process scrutiny, or not. When the guideposts are viewed as a framework for analyzing the jurisdictional question, the case becomes far more palatable. Part II concludes by offers a preliminary sketch for reinterpreting Gore along these lines.

The central lesson to draw from Parts I and II is that the propriety of the Court's decision to review and remit the award in Gore must turn in part on our understanding of what is going on when a jury awards punitive damages in a tort case. In particular, is it intelligible to suppose that punitive damages, which, prior to Haslip and the other decisions leading to Gore, had never been thought to raise due process issues, were once fairly and appropriately classed with compensatory damages for purposes of due process, and yet have now so changed in character that they may appropriately be treated as a criminal sanction? This is not primarily an issue about constitutional law, although it has implication for constitutional analysis. Rather, it is an issue as to the nature of tort law, and the meaning and significance of punitive damages within tort law. As I have argued elsewhere, I believe that this issue is usefully addressed by considering the account of tort law offered by contemporary corrective justice theorists, which is undertaken in Part III-A. On those accounts, punitive damages in the private law make no sense at all - they are fish out of water. While, in this sense, corrective justice theory can help make sense of the Court's willingness to intervene in Gore, they can't really make sense of the halfway position the Court ends up taking - on their view the Court should have banned the award of punitive damages. This only highlights the inadequacy of corrective justice theory as an interpretation of American tort law.

Part III-B offers an alternative to corrective justice theory, one that can help makes sense of how punitive damages might properly function within a justice-based conception of the common law of torts. This conception invokes the model of rights, wrongs, and recourse that I have developed in several prior articles. The central thesis is that courts applying tort law recognize in private plaintiffs an entitlement to an avenue of recourse against one who has tortiously injured them. The notion of "correcting" or "making whole,", in this view, must be understood not as the goal or point of tort law and litigation. Rather, those ideas provide the default measure of damages for the successful tort claimant. They set the normal constraint on the recourse to which a tort victim is entitled. Punitive damages, at the common law, provide a selective and measured relaxation of that constraint. Historically, certain tort plaintiffs have been entitled to be punitive or to be vindictive toward their wrongdoers, but only if they have been willfully or maliciously wronged. Critically, the nature of the limiting question faced by courts in tort litigation under the common law is essentially the extent to which plaintiff himself was entitled to this additional mode or increment of redress. And the principal focus for the courts was not the social good that would be accomplished by the award, but the entitlement of the plaintiff to such a remedy. Because courts' enforcement of such awards has long been premised on the plaintiff's entitlement to redress, punitive damage awards so construed belong within the private law. Thus, the award of punitive damages on this understanding of what it means to award punitive damages did not and does not constitute a form of state-imposed punishment or fine. The implication for constitutional analysis is that a Court reviewing this sort of award would have no business setting it aside on the grounds that it constituted an excessive fine or punishment, because, despite their name, punitive damages are paid to the plaintiff in recognition of the wrong done to her, not paid to or imposed by the state directly.

To this point, the analysis has pointed toward a critique of Gore. In Part IV, however, I will use the foregoing analysis to defend it, albeit on grounds different from those invoked by the Court itself. The critical insight is to realize that, in the last 30 years, many state courts have moved away from a genuinely tort-based conception of punitive damages. Increasingly, the express or implicit justification for such awards is that they provide a socially-optimal sanction by which to deter corporate actors from engaging in anti-social conduct, without regard to plaintiff entitlement. Rationality from a pure deterrence perspective provides a reason for the jury to come in with a big award. Many courts, on review, will find such rationality to protect, either wholly or partially, against a finding of excessiveness. The analysis suggests that, in such jurisdictions, when juries award punitive damages, and courts uphold them on a deterrence rationale, the state is engaging in something much closer to the impositions of fines and punishments, and is certainly not limiting itself to the enforcement of rights and duties among private parties. Hence the argument for "immunizing" punitive damage awards from procedural due process scrutiny in such jurisdictions is weak, and the case for constitutional scrutiny correspondingly stronger.

Part IV.B revisits the guideposts in Gore from this perspective, and suggests that in addition to serving their stated function of providing courts with guidance as to how to set punitive award amounts, the guideposts serve another, perhaps more important, threshold function. In particular, they provide a helpful framework within which a court can assess whether a given punitive award was awarded and upheld as an award of tort damages or instead as an exercise in state regulation. The guidelines, in other words, provide a means of identifying those punitive awards that are appropriately subject to constitutional scrutiny for excessiveness in the first place. Viewed in this light, the Court's decision that the award in Gore does not involve a constitutionally "immune" decision of private civil litigation is largely defensible, and the cries of the dissent are largely misplaced.

Gore is a modern torts chestnut because it is truly a hard case. It is hard, in the first instance, because the facts cry out for a result that seems ungrounded in the law. It is hard in a second sense because it causes us to think much more carefully and deeply about the structure of tort and punitive damages law, and the implications of those thoughts for constitutional law.