Patrick Borchers, “Punitive Damages, Forum Shopping, and the Conflict of Laws,” Louisiana Law Review, 2010

Creighton University Professor of Law Patrick Borchers explores how conflict-of-laws principles intersect with the availability and dimensions of punitive damages in state courts. His goal is “to catalog the different conflicts issues that affect punitive damages liability,” and he focuses his analysis on jurisdictional, judgment-recognition and choice-of-law rules. Among other matters, Borchers notes that while U.S. courts must recognize punitive damages judgments rendered in other states, litigation involving international parties will present obstacles to plaintiffs seeking to enforce punitive awards in foreign courts, thus making it more critical in these cases for plaintiffs to choose and remain in a venue where the defendant has significant assets.

Catherine Sharkey, “The Exxon Valdez Litigation Marathon: A Window on Punitive Damages,” University of St. Thomas Law Journal, 2010

New York University School of Law Professor Catherine Sharkey carefully examines the U.S. Supreme Court’s resolution of a two-decade long dispute over punitive damages arising from a massive oil spill off the coast of Alaska and suggests that it raises punitive damages issues that could occupy state and federal courts for the next two decades. According to Sharkey, the Court was fixated on unpredictability which drove it to “an exclusively retributive rationale for punitive damages.” She contends that this raises three issues for future punitive damages doctrine and policy: (i) whether the Court’s focus can be linked to a “broader trend in the Court’s jurisprudence of circumscribing the role of the civil jury in the name of certainty, predictability, and efficiency”; (ii) whether the ruling will affect the Court’s acceptance of a mandatory punitive damages class under Federal Rule of Civil Procedure 23; and (iii) “how far the Court will press its federalization of the punitive damages remedy, especially if states step forward as antagonistic players.”

David Stras & James Spriggs II, “Explaining Plurality Decisions,” Georgetown Law Journal (forthcoming 2011)

A law professor and a professor of government have conducted empirical research on U.S. Supreme Court plurality decisions rendered between the Court’s 1953 and 2006 terms. These decisions achieved a 5-4 majority as to the result only and thus provide little definitive guidance for lower courts or future Court decisions with respect to their rationale. According to the authors, plurality results are more likely to occur if the case involves constitutional interpretation relating to a civil liberties issue and lower court conflict did not affect the decision to grant certiorari. The article suggests that identifying the factors that lead an individual justice to join the majority coalition or join while writing a separate concurrence can be essential for evaluating the ramifications of plurality decisions and the development of federal law. The authors call for further research into the precedential value of plurality decisions at both the state and federal levels and whether changes to institutional rules and norms of the Court should be considered to discourage plurality rulings.