Mayola Williams sued Philip Morris, the manufacturer of Marlboros, for the wrongful death (from lung cancer) of her husband Jesse, who had been a lifelong Marlboro smoker. Despite warnings from the federal government, family, and many others, Jesse Williams had smoked because he allegedly believed Philip Morris’s claims that smoking had not been proven to be dangerous. An Oregon jury awarded Ms. Williams $821,000 in compensatory damages (reduced to $521,000 because of a cap on pain and suffering) and $79.5 million in punitive damages (of which sixty percent was diverted to the Oregon government The punitive award was upheld by Oregon’s appellate courts and was reaffirmed on remand after the United States Supreme Court ordered it to be reconsidered in light of the Court’s ruling in State Farm Mutual Automobile Insurance Co. v. Campbell. The Oregon Supreme Court upheld the award under Campbell because Philip Morris’s behavior was “extraordinarily reprehensible.”

A sharply divided United States Supreme Court reversed, finding that the punitive damages award against Philip Morris violated the company’s constitutional right to due process. Justice Breyer’s majority opinion ruled for the first time that a factfinder must be instructed that it may not increase punitive damages because of harm caused to nonparties to a lawsuit. Such harm is, Breyer conceded, relevant to the availability of punitive damages but may play no role in determining the amount of a punitive award. The majority declined to consider a separate question—whether the one-hundred-to-one ratio of punitive to compensatory awards in Williams flouted the constitutional standards of BMW of North America v. Gore—presumably because it expected the quantum to be reduced on remand.

In dissent, Justice Ginsburg, joined by Justices Scalia and Thomas, noted that Philip Morris’s proposed jury instruction—the rejection of which was the basis for its appeal—itself approved consideration of harm suffered by nonparties, and that, therefore, the majority’s ruling did not respect the case’s procedural posture. Justice Thomas, aghast at yet another use of substantive due process, concluded that the Court’s jurisprudence on punitive damages “is ‘insusceptible of principled application.’” Justice Stevens, writing separately, agreed with Justice Ginsburg that the defendant’s appeal precluded the majority’s ruling and added that he saw “no reason why an interest in punishing a wrongdoer ‘for harming persons who are not before the court’ should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct.”

I have long believed that the most coherent federal-constitutional justification for judicial control of state punitive damages awards is the Eighth Amendment’s “excessive fines” clause. Unfortunately, this view was rejected by a majority of the Court in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. In an interesting footnote to his Williams dissent, however, Justice Stevens returned to the Eighth Amendment.

In any case, after Williams, judges must tell jurors to think about harm to nonparties in deciding whether the defendant’s conduct merits a punitive award. But then jurors cannot think about that harm when determining the amount of punitive damages; to calculate punitive damages they must somehow consider only the harm to the plaintiff. How jurors are to clear their minds between these two steps is unclear—what is clear is that this issue will be back before the Court.

My own view is that awards of punitive damages almost always violate a key characteristic of tort law by breaching the private ordering/public ordering divide. If I am correct, the role Professor Dan Markel reserves for punitive damages is incompatible with tort law’s nature. I wish to first summarize that view and then comment on “micro” aspects of Markel’s interesting paper.