The Supreme Court/The Supreme Court.iso/pc/ascii/1989/89_1279/89_1279.c2

Text File | 1991-03-03 | 6KB | 104 lines

Subject: 89-1279 -- CONCUR, PACIFIC MUTUAL LIFE INSURANCE CO. v. HASLIP


SUPREME COURT OF THE UNITED STATES


No. 89-1279



PACIFIC MUTUAL LIFE INSURANCE COMPANY,
PETITIONER v. CLEOPATRA HASLIP et al.


on writ of certiorari to the supreme court of alabama

[March 4, 1991]



    Justice Kennedy, concurring in the judgment.

    Historical acceptance of legal institutions serves to validate them not
because history provides the most convenient rule of decision but because
we have confidence that a longaccepted legal institution would not have
survived if it rested upon procedures found to be either irrational or
unfair.  For this reason, Justice Scalia's historical approach to questions
of procedural due process has much to commend it.  I cannot say with the
confidence maintained by Justice Scalia, however, that widespread adherence
to a historical practice always forecloses further inquiry when a party
challenges an ancient institution or procedure as violative of due process.
But I agree that the judgment of history should govern the outcome in the
case before us.  Jury determination of punitive damages has such long and
principled recognition as a central part of our system that no further
evidence of its essential fairness or rationality ought to be deemed
necessary.
    Our legal tradition is one of progress from fiat to rationality.  The
evolution of the jury illustrates this principle.  From the 13th or 14th
century onward, the verdict of the jury found gradual acceptance not as a
matter of ipse dixit, the basis for verdicts in trials by ordeal which the
jury came to displace, but instead because the verdict was based upon
rational procedures.  See Plucknett, A Concise History of the Common Law
120-131 (5th ed. 1956).  Elements of whim and caprice do not predominate
when the jury reaches a consensus based upon arguments of counsel, the
presentation of evidence, and instructions from the trial judge, subject to
review by the trial and appellate courts. There is a principled
justification too in the composition of the jury, for its representative
character permits its verdicts to express the sense of the community.
    Some inconsistency of jury results can be expected for at least two
reasons.  First, the jury is empanelled to act as a decisionmaker in a
single case, not as a more permanent body.  As a necessary consequence of
their case-by-case existence, juries may tend to reach disparate outcomes
based on the same instructions.  Second, the generality of the instructions
may contribute to a certain lack of predictability.  The law encompasses
standards phrased at varying levels of generality.  As with other
adjudicators, the jury may be instructed to follow a rule of certain and
specific content in order to yield uniformity at the expense of
considerations of fairness in the particular case; or, as in this case, the
standard can be more abstract and general to give the adjudicator
flexibility in resolving the dispute at hand.
    These features of the jury system for assessing punitive damages
discourage uniform results, but nonuniformity cannot be equated with
constitutional infirmity.  As we have said in the capital sentencing
context:

"It is not surprising that such collective judgments often are difficult to
explain.  But the inherent lack of predictability of jury decisions does
not justify their condemnation.  On the contrary, it is the jury's function
to make the difficult and uniquely human judgments that defy codification
and that `buil[d] discretion, equity, and flexibility into a legal system.'
"  McCleskey v. Kemp, 481 U. S. 279, 311 (1987) (quoting H. Kalven & H.
Zeisel, The American Jury 498 (1966)).


    This is not to say that every award of punitive damages by a jury will
satisfy constitutional norms.  A verdict returned by a biased or prejudiced
jury no doubt violates due process, and the extreme amount of an award
compared to the actual damage inflicted can be some evidence of bias or
prejudice in an appropriate case.  One must recognize the difficulty of
making the showing required to prevail on this theory.  In my view,
however, it provides firmer guidance and rests on sounder jurisprudential
foundations than does the approach espoused by the majority.  While seeming
to approve the common law method for assessing punitive damages, ante, at
14, the majority nevertheless undertakes a detailed examination of that
method as applied in the case before us, ante, at 14-20.  It is difficult
to comprehend on what basis the majority believes the common-law method
might violate due process in a particular case after it has approved that
method as a general matter, and this tension in its analysis now must be
resolved in some later case.
    In my view, the principles mentioned above and the usual protections
given by the laws of the particular State must suffice until judges or
legislators authorized to do so initiate systemwide change.  We do not have
the authority, as do judges in some of the States, to alter the rules of
the common law respecting the proper standard for awarding punitive damages
and the respective roles of the jury and the court in making that
determination.  Were we sitting as state court judges, the size and
recurring unpredictability of punitive damages awards might be a convincing
argument to reconsider those rules or to urge a reexamination by the
legislative authority.  We are confined in this case, however, to
interpreting the Constitution, and from this perspective I agree that we
must reject the arguments advanced by petitioner.   For these reasons I
concur in the judgment of the Court.

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