The Future of Classwide Punitive Damages

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding “classwide” damages in a single-plaintiff case.Courts’ conceptualization of punitive damages as either individualistic or societaldictates how they decide the certification question. My survey of recent case lawreveals that courts taking the plaintifffocused individualistic view of punitivedamages tend to deny class certification, while courts embracing the defendantfocusedsocietal view are more likely to certify a punitive damages class, all elsebeing equal. Therefore, the viability of the punitive damages class depends upon thepersuasiveness of the societal conception of punitive damages.Based on this empirical grounding I discuss two possibilities for reform. First, statelegislatures and courts could affirmatively define the collectivized, societal rationalefor punitive damages. Such state legislative measures would likely withstand constitutionalscrutiny under Philip Morris USA v. Williams, given the U.S.Supreme Court’s reaffirmation of the primacy of the state’s role in defining thelegitimate purposes of punitive damages. Second, federal courts-in the absence ofdefinitive guidance from authoritative sources on state substantive law-couldconsider the underlying societal rationale for punitive damages in the course oftheir certification decisions. To do so would not only be permitted, but indeed warranted,by the Rules Enabling Act.