supreme-court.thumbnail.jpgThere have been more than a few areas where conservatives have taken a constant sledgehammer to the law until enough people finally yield in exhaustion.

And this week, we’ve seen two of them, oh, make it three.

This week is a particularly troubling one because the Fourth Amendment (the new FISA bill); and the Eighth Amendment (reaction to the prohibition of the death penalty for child rape) have come up in an election year. And we all know how much that sucks — because the media is incapable of having a "mature" debate on issues, as it is comprised of too many venal and insipid shills from top to bottom; and too many people just want their pablum so they can move on. It’s all about "character" (i.e. who’s a badass?) and process ("who’s up, who’s down – how can me make them even?).

Well, you know the drill, it gets hammered at you and about you all day.

But there is a third defeat this week as well and it doesn’t bode well for those of you who say die or get sick because a produce or meat distributor or even restaurant does not follow well-known and standard safety precautions. Or a manufacturer sells you a car that would be better known as the "Death Trap 3000". A hybrid that crosses rolling over easily with being highly flammable.

Yesterday, the Supreme Court took a not particularly bold step of allowing companies to amortize their own deliberate indifference to safety and responsibility. I guess it’s all up to the power of Jesus or something.

The Supreme Court on Wednesday reduced what had once been a $5 billion punitive damages award against Exxon Mobil to about $500 million. The ruling essentially concluded a legal saga that started when the Exxon Valdez, a supertanker, struck a reef and spilled 11 million gallons of crude oil into the Prince William Sound in Alaska in 1989.

The decision may have broad implications for limits on punitive damages generally. Punitive damages, which are meant to punish and deter, are imposed on top of compensatory damages, which aim to make plaintiffs whole.

Justice David H. Souter, writing for the majority in the 5-to-3 decision, said a ratio between the two sorts of damages of no more than one-to-one was generally appropriate, at least in maritime cases.

First of all, this case if nothing, else demonstrates the first legal tactic of a large business with a large penalty, tie cases up in the courts for frickin’ ever.

How many of the right wingers who decry the ability of criminal appeals with what they describe as frivolous appeals have absolutely no freakin’ problem with the world’s most profitable business delaying for nearly two decades? I know, all of them.

Second, and more profoundly, it will not be long until Justice Souter’s decision on a "one-to-one" ratio in maritime cases gets applied to virtually all cases involving a civil defendant’s deliberate indifference or recklessness to safety.

When a company can know calculate the potential penalty they may incur for causing injury by not giving a crap, then they can pass on the cost to you, the consumer, who unknowingly buys the "Death Trap 3000". Think of how delighted the tobacco industry would be with a "one-to-one" rule?

And here is the cold calculated quite visible hand of the "market" compromising the risk of dangerous conduct being minimized right from the decision:

The real problem, it seems, is the stark unpredictability of punitive awards. Courts of law are concerned with fairness as consistency, and evidence that the median ratio of punitive to compensatory awards falls within a reasonable zone, or that punitive awards are infrequent, fails to tell us whether the spread between high and low individual awards is acceptable. The available data suggest it is not. A recent comprehensive study of punitive damages awarded by juries in state civil trials found a median ratio of punitive to compensatory awards of just 0.62:1, but a mean ratio of 2.90:1 and a standard deviation of 13.81. Juries, Judges, and Punitive Damages 269.16 Even to those of us unsophisticated in statistics, the thrust of these figures is clear: the spread is great, and the outlier cases subject defendants to punitive damages that dwarf the corresponding compensatory damages.

The sheer gall of the Court applying a generality to something so "fact-specific" as punitive damage awards is breathtaking in its banality. When a company knows the "risk" of bad behavior to a reasonable certainty, but the bad behavior increases profit they’ll gladly pass that risk on in profitable form to one person, the customer. The very person paying the cost of making the dangerous product is the person buying the unsafe product.

The Exxon decision is a dangerous one, it’s application will spread primarily because of the dicta above. Among other things people are quite simply going to get sick and die because of it. But at least the agent of death can build that risk into their bottom line now.

Thanks Supreme Court.

(picture from mbell1975)

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