The Federalization of Punitive Damages and the Effect on Illinois Law
Perrecone, Frank A.
Fabiano, Lisa R.
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Punitive damages have traditionally been a matter of state law, left to state courts and legislatures to review and regulate. But in the midst of the tort reform movement of the 1990s, the United States Supreme Court took sides in the policy debate, fashioning a novel substantive due process right limiting punitive damage awards and suppressing the power of juries to punish and deter egregious conduct. This article traces the evolution of the federalization of punitive damages based on questionable authority, criticizes the Supreme Court's intrusion into an area of state law, demonstrates how Supreme Court precedent has been misapplied by lower courts, and suggests a methodology for practitioners to withstand a constitutional due process challenge to the size of a punitive damage award.