Baseball Crank
Covering the Front and Back Pages of the Newspaper
September 10, 2002
LAW: Federalism's Edge, Part II

Following up on my point about Federalism's Edge -- the tipping point at which a state's assertion of power threatens other states' autonomy -- take a look at this Michael Barone piece on the Supreme Court's upcoming look at punitive damage awards, as well as another case trying to swim upstream to get certiorari granted (in any individual civil case, the odds are extremely long, in the 100-to-1 neighborhood if I remember right) to prevent a West Virginia court from using what Barone describes as a coercive procedure to force settlement of nationwide asbestos claims. The main federalism aspect here, which seems like one that may intrigue the current Court if it wishes to make more explicit the extraterritoriality analysis of BMW v. Gore, is the notion that a state is overreaching if it allows punitive awards calculated on the basis of a defendant's nationwide/worldwide operations rather than its operations in the state.

If you think about it, this was also at least a subtext in one of the Warren Court's most famous decisions, New York Times v. Sullivan, the case that imposed a constitutional requirement that a libel suit against a public figure must show "malice" (generally, knowledge of the falsity of the libelous statement). As any First Amendment afficionado can tell you, one of the egregious things about the Sullivan case was that an Alabama jury (like the one in BMW v. Gore) imposed liability exceeding the Times' operating revenues from sales in Alabama. It was this disproportion that presented the factual setting of Sullivan as being so threatening to free expression: the idea that a national newspaper could be silenced from speaking on the civil rights movement by a single Southern state. It was, in short, a state action that passed over Federalism's Edge.

Posted by Baseball Crank at 5:18 AM | Law 2002-04 | Comments (0) | TrackBack (0)
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