Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
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WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
After considerable thought, I have concluded that punitive damages should be abolished except where authorized by a statute that prescribes appropriate standards. The imposition of punishment is a function of the state, not of lay juries without standards or statutory limitations. I do not see how permitting a jury to impose private fines can be reconciled with the Fifth and Fourteenth Amendments. Also, the purpose of tort recovery is to compensate—not to confer a windfall.325 He concluded by noting that his “opinion is divided into parts so that you may, if you wish, join it in part. You would be welcome.”326 D.
Powell’s Folly
Powell’s new approach fell largely on deaf ears. White, Rehnquist, and O’Connor did not respond to it, at least in communications shared with the rest of the Conference. Something, however, did appear to be afoot, albeit unbeknownst to Brennan. The first hint came on November 29, when Burger wrote to his colleagues that, because he was “hav[ing] some problems with the case,” he would “await Byron’s views which, I gather, he may write out.”327 Brennan had not previously been informed that White had taken up his pen. That same day, again unbeknownst to Brennan, Rehnquist wrote to Powell with copies to Burger and O’Connor, similarly to advise him that “I agree more with your separate opinion in this case than I do with Bill Brennan’s proposed opinion, but I have enough reservations about yours so I think that I will wait and see what Byron writes. I am not yet ready to prohibit punitive damages in defamation cases.”328 On December 14, Brennan circulated a second draft of his own opinion, in which he responded, albeit briefly and only in footnotes, to Powell’s new proposal. With respect to Powell’s proposed treatment of presumed damages, Brennan confined himself largely to criticizing once again the distinction between media and nonmedia defendants on which it was premised, citing a host of cases in which state courts had not
325. Id. 326. Id. 327. Letter from Chief Justice Burger to the Conference (Nov. 29, 1984) (on file with the Brennan Papers, Library of Congress Manuscript Division) (on file with the Washington Law Review). 328. Letter from Justice Rehnquist to Justice Powell with copies to Chief Justice Burger and Justice O’Connor (Nov. 29, 1984) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355.