From Pennsylvania Supreme Court Justice David Wecht's concurrence yesterday in Bert Co. v. Turk (and see here for Justice Wecht's broader discussion of unenumerated rights):
… While I have significant doubts about much of the jurisprudence that controls the present inquiry and that assigns punitive damage awards a federal "constitutional status," the Majority has correctly and faithfully applied the standards (such as they are) set forth by the Supreme Court of the United States.
I write separately because the current state of Supreme Court precedent forces courts to engage in analytical exercises that lack sufficient clarity. Future litigants would be wise to seek more useful guidance from the Court and perhaps a complete unshackling of punitive damage awards from the artificial constraints placed upon them by that Court's bewildering substantive due process jurisprudence.
The imposition and limitation of punitive damage awards traditionally were considered matters of state law concern, in deference to our common law heritage and to American principles of federalism. Nonetheless, and in derogation of this tradition, in recent decades the Supreme Court has declared that the Due Process Clause of the Fourteenth Amendment to the United States Constitution places "procedural and substantive constitutional limitations on these awards" and "prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor."
The analysis that courts are now required to conduct in order to detect the federal constitutional borderline—a line often and erroneously distilled as a 10:1 ratio rule comparing punitive to compensatory damages—is riddled with caveats, qualifiers, and porous "guideposts" which render that analysis nearly incapable of principled application to concrete cases. Moreover, the Supreme Court's jurisprudence has exposed in sharp relief the flaws and fault lines embedded in the underlying doctrine that itself brought punitive damages into the realm of federal constitutional adjudication: the judicially-manufactured doctrine of "substantive due process."
