93-644.ZO Opinion
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SUPREME COURT OF THE UNITED STATES
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No. 93-644
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HONDA MOTOR CO., LTD., et al., PETITIONERS
v. KARL L. OBERG
on writ of certiorari to the supreme court of
oregon
[June 24, 1994]
Justice Stevens delivered the opinion of the Court.
An amendment to the Oregon Constitution prohibits
judicial review of the amount of punitive damages
awarded by a jury -unless the court can affirmatively
say there is no evidence to support the verdict.- The
question presented is whether that prohibition is
consistent with the Due Process Clause of the Four-
teenth Amendment. We hold that it is not.
I
Petitioner manufactured and sold the three-wheeled
all-terrain vehicle that overturned while respondent was
driving it, causing him severe and permanent injuries.
Respondent brought suit alleging that petitioner knew or
should have known that the vehicle had an inherently
and unreasonably dangerous design. The jury found
petitioner liable and awarded respondent $919,390.39 in
compensatory damages and punitive damages of
$5,000,000. The compensatory damages, however, were
reduced by 20% to $735,512.31, because respondent's
own negligence contributed to the accident. On appeal,
relying on our then recent decision in Pacific Mut. Life
Ins. Co. v. Haslip, 499 U. S. 1 (1991), petitioner argued
that the award of punitive damages violated the Due
Process Clause of the Fourteenth Amendment, because
the punitive damages were excessive and because
Oregon courts lacked the power to correct excessive
verdicts.
The Oregon Court of Appeals affirmed, as did the
Oregon Supreme Court. The latter court relied heavily
on the fact that the Oregon statute governing the award
of punitive damages in product liability actions and the
jury instructions in this case contain substantive
criteria that provide at least as much guidance to the
factfinders as the Alabama statute and jury instructions
that we upheld in Haslip. The Oregon Supreme Court
also noted that Oregon law provides an additional
protection by requiring the plaintiff to prove entitlement
to punitive damages by clear and convincing evidence
rather than a mere preponderance. Recognizing that
other state courts had interpreted Haslip as including a
-clear constitutional mandate for meaningful judicial
scrutiny of punitive damage awards,- Adams v.
Murakami, 54 Cal. 3d 105, 813 P. 2d 1348, 1356 (1991);
see also Alexander & Alexander, Inc. v. Evander B.
Dixon & Assocs., Inc., 88 Md. App. 672, 596 A. 2d 687
(1991), the Court nevertheless declined to -interpret
Haslip to hold that an award of punitive damages, to
comport with the requirements of the Due Process
Clause, always must be subject to a form of post-verdict
or appellate review that includes the possibility of
remittitur.- 316 Ore. 263, 284, 851 P. 2d 1084, 1096
(1993). It also noted that trial and appellate courts
were -not entirely powerless- because a judgment may
be vacated if -there is no evidence to support the jury's
decision,- and because -appellate review is available to
test the sufficiency of the jury instructions.- Id., at 285,
851 P. 2d, at 1096-1097.
We granted certiorari, 510 U. S. ___ (1994), to con-
sider whether Oregon's limited judicial review of the size
of punitive damage awards is consistent with our
decision in Haslip.
II
Our recent cases have recognized that the Constitution
imposes a substantive limit on the size of punitive
damage awards. Pacific Mut. Life Ins. Co. v. Haslip,
499 U. S. 1 (1991); TXO Production Corp. v. Alliance
Resources, Corp., 509 U. S. ___ (1993). Although they
fail to -draw a mathematical bright line between the
constitutionally acceptable and the constitutionally
unacceptable,- id., at ___ (slip op., at 13); Haslip, 499
U. S., at 18, a majority of the Justices agreed that the
Due Process Clause imposes a limit on punitive damage
awards. A plurality in TXO assented to the proposition
that -grossly excessive- punitive damages would violate
due process, 509 U. S., at ___ (slip op., at 5-7), while
Justice O'Connor, who dissented because she favored
more rigorous standards, noted that -it is thus common
ground that an award may be so excessive as to violate
due process.- Id., at ___ (slip op. at 8). In the case
before us today we are not directly concerned with the
character of the standard that will identify unconstitu-
tionally excessive awards; rather we are confronted with
the question of what procedures are necessary to ensure
that punitive damages are not imposed in an arbitrary
manner. More specifically, the question is whether the
Due Process Clause requires judicial review of the
amount of punitive damage awards.
The opinions in both Haslip and TXO strongly empha-
sized the importance of the procedural component of the
Due Process Clause. In Haslip, the Court held that the
common law method of assessing punitive damages did
not violate procedural due process. In so holding, the
Court stressed the availability of both -meaningful and
adequate review by the trial court- and subsequent
appellate review. 499 U. S., at 20. Similarly, in TXO,
the plurality opinion found that the fact that the -award
was reviewed and upheld by the trial judge- and
unanimously affirmed on appeal gave rise -to a strong
presumption of validity.- 509 U. S., at ___ (slip op., at
12). Concurring in the judgment, Justice Scalia (joined
by Justice Thomas) considered it sufficient that tradi-
tional common law procedures were followed. In
particular, he noted that -`procedural due process'
requires judicial review of punitive damages awards for
reasonableness . . . .- Id., at ___ (slip op., at 2).
All of those opinions suggest that our analysis in this
case should focus on Oregon's departure from traditional
procedures. We therefore first contrast the relevant
common law practice with Oregon's procedure, which
that State's Supreme Court once described as -a system
of trial by jury in which the judge is reduced to the
status of a mere monitor.- Van Lom v. Schneiderman,
187 Ore. 89, 113, 210 P. 2d 461, 471 (1949). We then
examine the constitutional implications of Oregon's
deviation from established common law procedures.
III
Judicial review of the size of punitive damage awards
has been a safeguard against excessive verdicts for as
long as punitive damages have been awarded. One of
the earliest reported cases involving exemplary damages,
Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P.
1763), arose out of King George III's attempt to punish
the publishers of the allegedly seditious North Briton,
No. 45. The King's agents arrested the plaintiff, a
journeyman printer, in his home and detained him for
six hours. Although the defendants treated the plaintiff
rather well, feeding him -beef-steaks and beer, so that
he suffered very little or no damages,- 2 Wils., at 205,
95 Eng. Rep., at 768, the jury awarded him -300, an
enormous sum almost three hundred times the plaintiff's
weekly wage. The defendant's lawyer requested a new
trial, arguing that the jury's award was excessive.
Plaintiff's counsel, on the other hand, argued that -in
cases of tort . . . the Court will never interpose in
setting aside verdicts for excessive damages.- Id., at
206, 95 Eng. Rep., at 768. While the court denied the
motion for new trial, the Chief Justice explicitly rejected
plaintiff's absolute rule against review of damages
amounts. Instead, he noted that when the damages are
-outrageous- and -all mankind at first blush must think
so,- a court may grant a new trial -for excessive dam-
ages.- Id., at, 207, 95 Eng. Rep., at 769. In accord
with his view that the amount of an award was relevant
to the motion for a new trial, the Chief Justice noted
that -[u]pon the whole, I am of opinion the damages are
not excessive.- Ibid.
Subsequent English cases, while generally deferring to
the jury's determination of damages, steadfastly upheld
the court's power to order new trials solely on the basis
that the damages were too high. Fabrigas v. Mostyn, 2
Black. W. 929, 96 Eng. Rep. 549 (C.P. 1773) (Damages
-may be so monstrous and excessive, as to be in them-
selves an evidence of passion or partiality in the jury-);
Sharpe v. Brice, 2 Black. W. 942, 96 Eng. Rep. 557
(C. P. 1774) (-It has never been laid down, that the
Court will not grant a new trial for excessive damages
in any cases of tort-); Leith v. Pope, 2 Black. W. 1327,
1328, 96 Eng. Rep. 777, 778 (C. P. 1779) (-[I]n cases of
tort the Court will not interpose on account of the
largeness of damages, unless they are so flagrantly
excessive as to afford an internal evidence of the
prejudice and partiality of the jury-); Jones v. Sparrow,
5 T. R. 257, 101 Eng. Rep 144 (K. B. 1793) (new trial
granted for excessive damages); Goldsmith v. Lord
Sefton, 3 Anst. 808, 145 Eng. Rep. 1046 (Exch. 1796)
(same); Hewlett v. Cruchley, 5 Taunt. 277, 281, 128 Eng.
Rep. 696, 698 (C. P. 1813) (-[I]t is now well acknowl-
edged in all the Courts of Westminster-hall, that whether
in actions for criminal conversation, malicious prosecu-
tions, words, or any other matter, if the damages are
clearly too large, the Courts will send the inquiry to
another jury-).
Respondent calls to our attention the case of
Beardmore v. Carrington, 2 Wils. 244, 95 Eng. Rep. 790
(C. P. 1764) in which the court asserted that -there is
not one single case, (that is law), in all the books to be
found, where the Court has granted a new trial for
excessive damages in actions for torts.- Id., at 249, 95
Eng. Rep., at 793. Respondent would infer from that
statement that 18th-century common law did not provide
for judicial review of damages. Respondent's argument
overlooks several crucial facts. First, the Beardmore
case antedates all but one of the cases cited in the
previous paragraph. Even if respondent's interpretation
of the case were correct, it would be an interpretation
the English courts rejected soon thereafter. Second,
Beardmore itself cites at least one case which it con-
cedes granted a new trial for excessive damages,
Chambers v. Robinson, 2 Str. 691, 93 Eng. Rep. 787
(K. B. 1726), although it characterizes the case as
wrongly decided. Third, to say that -there is not one
single case . . . in all the books- is to say very little,
because then, much more so than now, only a small
proportion of decided cases was reported. For example,
for 1764, the year Beardmore was decided, only 16
Common Pleas cases are recorded in the standard
reporter. 2 Wils. 208-257, 95 Eng. Rep. 769-797.
Finally, the inference respondent would draw, that 18th-
century English common law did not permit a judge to
order new trials for excessive damages, is explicitly
rejected by Beardmore itself, which cautioned against
that very inference: -We desire to be understood that
this Court does not say, or lay down any rule that there
never can happen a case of such excessive damages in
tort where the Court may not grant a new trial.- 2
Wils., at 250, 95 Eng. Rep., at 793.
Common law courts in the United States followed
their English predecessors in providing judicial review of
the size of damage awards. They too emphasized the
deference ordinarily afforded jury verdicts, but they
recognized that juries sometimes awarded damages so
high as to require correction. Thus, in 1822, Justice
Story, sitting as Circuit Justice, ordered a new trial
unless the plaintiff agreed to a reduction in his dam-
ages. In explaining his ruling, he noted:
-As to the question of excessive damages, I agree,
that the court may grant a new trial for excessive
damages. . . . It is indeed an exercise of discretion
full of delicacy and difficulty. But if it should
clearly appear that the jury have committed a gross
error, or have acted from improper motives, or have
given damages excessive in relation to the person or
the injury, it is as much the duty of the court to
interfere, to prevent the wrong, as in any other
case.- Blunt v. Little, 3 F. Cas. 760, 761-762 (CC
Mass. 1822)
See also Whipple v. Cumberland Mfg. Co., 29 F. Cas.
934, 937-938 (CC Me. 1843).
In the 19th century, both before and after the ratifica-
tion of the Fourteenth Amendment, many American
courts reviewed damages for -partiality- or -passion and
prejudice.- Nevertheless, because of the difficulty of
probing juror reasoning, passion and prejudice review
was, in fact, review of the amount of awards. Judges
would infer passion, prejudice, or partiality from the size
of the award. Coffin v. Coffin, 4 Mass. 1, 41 (1808) (In
cases of personal injury, -a verdict may be set aside for
excessive damages- when -from the exorbitancy of them
the court must conclude that the jury acted from
passion, partiality, or corruption-); Taylor v. Giger, 3 Ky.
586, 587 (1808) (-In actions of tort . . . a new trial
ought not to be granted for excessiveness of damages,
unless the damages found are so enormous as to shew
that the jury were under some improper influence, or
were led astray by the violence of prejudice or passion-);
McConnell v. Hampton, 12 Johns. 234, 235 (N. Y. 1815)
(granting new trial for excessive damages and noting:
-That Courts have a legal right to grant new trials, for
excessive damages in actions for tort, is no where
denied. . . .-); Belknap v. Boston & Maine R. Co., 49
N. H. 358, 374 (1870) (setting aside both compensatory
and punitive damages, because -[w]e think it evident
that the jury were affected by some partiality or preju-
dice . . .-).
Nineteenth century treatises similarly recognized
judges' authority to award new trials on the basis of the
size of damage awards. 1 D. Graham, A Treatise on the
Law of New Trials 442 (2d ed. 1855) (-[E]ven in personal
torts, where the jury find outrageous damages, clearly
evincing partiality, prejudice and passion, the court will
interfere for the relief of the defendant, and order a new
trial-); T. Sedgwick, A Treatise on the Measure of
Damages 707 (5th ed. 1869) (-The court again holds
itself at liberty to set aside verdicts and grant new trials
. . . whenever the damages are so excessive as to create
the belief that the jury have been misled either by
passion, prejudice, or ignorance-); 3 J. Sutherland, A
Treatise on the Law of Damages 469 (1883) (When
punitive damages are submitted to the jury, -the amount
which they may think proper to allow will be accepted
by the court, unless so exorbitant as to indicate that
they have been influenced by passion, prejudice or a
perverted judgment-).
Modern practice is consistent with these earlier
authorities. In the federal courts and in every State,
except Oregon, judges review the size of damage awards.
See Dagnello v. Long Island R. Co., 289 F. 2d 797,
799-800 n. 1 (CA2 1961) (citing cases from all 50 States
except Alaska, Maryland, and Oregon); Nome v. Ailak,
570 P. 2d 162, 173-174 (Alaska 1977); Alexander &
Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88
Md. App. 596 A. 2d 687, 709-711 672, 716-722, (1991),
cert. denied, 605 A.2d 137 (Md. 1992); Texaco, Inc. v.
Pennzoil, Co., 729 S. W. 2d 768 (Tex. App. 1987);
Grimshaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174
Cal. Rptr. 348 (1981); Draper, Excessiveness or Inade-
quacy of Punitive Damages Awarded in Personal Injury
or Death Cases, 12 A. L. R. 5th 195 (1993); Schapper,
Judges Against Juries-Appellate Review of Federal
Civil Jury Verdicts, 1989 Wis. L. Rev. 237.
IV
There is a dramatic difference between the judicial
review of punitive damages awards under the common
law and the scope of review available in Oregon. An
Oregon trial judge, or an Oregon Appellate Court, may
order a new trial if the jury was not properly instructed,
if error occurred during the trial, or if there is no
evidence to support any punitive damages at all. But if
the defendant's only basis for relief is the amount of
punitive damages the jury awarded, Oregon provides no
procedure for reducing or setting aside that award. This
has been the law in Oregon at least since 1949 when
the State Supreme Court announced its opinion in Van
Lom v. Schneiderman, 187 Ore. 89, 210 P. 2d 461
(1949), definitively construing the 1910 Amendment to
the Oregon Constitution.
In that case the court held that it had no power to
reduce or set aside an award of both compensatory and
punitive damages that was admittedly excessive. It
recognized that the constitutional amendment placing a
limitation on its power was a departure from the
traditional common law approach. That opinion's
characterization of Oregon's -lonely eminence- in this
regard, id., at 113, 210 P. 2d, at 471, is still an accurate
portrayal of its unique position. Every other State in
the Union affords post-verdict judicial review of the
amount of a punitive damages award, see supra, at 10,
and subsequent decisions have reaffirmed Oregon judges'
lack of authority to order new trials or other relief to
remedy excessive damages. Fowler v. Courtemanche, 202
Ore. 413, 448, 274 P. 2d 258, 275 (1954) (-If this court
were authorized to exercise its common law powers, we
would unhesitatingly hold that the award of $35,000 as
punitive damages was excessive . . .-); Tenold v.
Weyerhaeuser Co., 127 Ore. App. 511 (1993) (Oregon
court cannot examine jury award to ensure compliance
with $500,000 statutory limit on noneconomic damages).
Respondent argues that Oregon's procedures do not
deviate from common law practice, because Oregon
judges have the power to examine the size of the award
to determine whether the jury was influenced by passion
and prejudice. This is simply incorrect. The earliest
Oregon cases interpreting the 1910 amendment squarely
held that Oregon courts lack precisely that power.
Timmins v. Hale, 122 Ore. 22, 43-44, 256 P. 770, 776
(1927); McCulley v. Homestead Bakery, Inc., 141 Ore.
460, 465-466, 18 P. 2d 226, 228 (1933). Although dicta
in later cases have suggested that the issue might
eventually be revisited, see Van Lom, 187 Ore., at 106,
210 P. 2d, at 468, the earlier holdings remain Oregon
law. No Oregon court for more than half a century has
inferred passion and prejudice from the size of a
damages award, and no court in more than a decade has
even hinted that courts might possess the power to do
so. Finally, if Oregon courts could evaluate the exces-
siveness of punitive damage awards through passion and
prejudice review, the Oregon Supreme Court would have
mentioned that power in this very case. Petitioner
argued that Oregon procedures were unconstitutional
precisely because they failed to provide judicial review
of the size of punitive damage awards. The Oregon
Supreme Court responded by rejecting the idea that
judicial review of the size of punitive damage awards
was required by Haslip. 316 Ore., at 263, 851 P. 2d, at
1084. As the Court noted, two state appellate courts,
including the California Supreme Court, had reached the
opposite conclusion. Id., at 1096, n. 13. If, as respond-
ent claims, Oregon law provides passion and prejudice
review of excessive verdicts, the Oregon Supreme Court
would have had a more obvious response to petitioner's
argument.
Respondent also argues that Oregon provides adequate
review, because the trial judge can overturn a punitive
damage award if there is no substantial evidence to
support an award of punitive damages. See Fowler v.
Courtemanche, 202 Ore. 413, 274 P. 2d 258, 275 (1954).
This argument is unconvincing, because the review
provided by Oregon courts ensures only that there is
evidence to support some punitive damages, not that there
is evidence to support the amount actually awarded.
While Oregon's judicial review ensures that punitive
damages are not awarded against defendants entirely
innocent of conduct warranting exemplary damages,
Oregon, unlike the common law, provides no assurance
that those whose conduct is sanctionable by punitive
damages are not subjected to punitive damages of
arbitrary amounts. What we are concerned with is the
possibility that a guilty defendant may be unjustly
punished; evidence of guilt warranting some punishment
is not a substitute for evidence providing at least a
rational basis for the particular deprivation of property
imposed by the State to deter future wrongdoing.
V
Oregon's abrogation of a well-established common law
protection against arbitrary deprivations of property
raises a presumption that its procedures violate the Due
Process Clause. As this Court has stated from its first
Due Process cases, traditional practice provides a
touchstone for constitutional analysis. Murray v.
Hoboken Land & Improvement Co., 18 How. 272 (1856);
Tumey v. Ohio, 273 U. S. 510 (1927); Brown v. Missis-
sippi, 297 U. S. 278 (1936); In re Winship, 397 U. S.
358, 361 (1970); Burnham v. Superior Court of Cal.,
County of Marin, 495 U. S. 604 (1990); Pacific Mut. Life
Ins. Co. v. Haslip, 499 U. S. 1 (1991). Because the
basic procedural protections of the common law have
been regarded as so fundamental, very few cases have
arisen in which a party has complained of their denial.
In fact, most of our Due Process decisions involve
arguments that traditional procedures provide too little
protection and that additional safeguards are necessary
to ensure compliance with the Constitution. Ownbey v.
Morgan, 256 U. S. 94 (1921); Burnham v. Superior Court
of Cal., County of Marin, 495 U. S. 604 (1990); Pacific
Mut. Life Ins., v. Haslip, 499 U. S. 1 (1991).
Nevertheless, there are a handful of cases in which a
party has been deprived of liberty or property without
the safeguards of common law procedure. Hurtado v.
California, 110 U. S. 516 (1884); Tumey v. Ohio, 273
U. S. 510 (1927); Brown v. Mississippi, 297 U. S. 278
(1936); In re Oliver, 333 U. S. 257 (1948); In re Winship,
397 U. S., at 361. When the absent procedures would
have provided protection against arbitrary and inaccu-
rate adjudication, this Court has not hesitated to find
the proceedings violative of Due Process. Tumey v.
Ohio, 273 U. S. 510 (1927); Brown v. Mississippi, 297
U. S. 278 (1936); In re Oliver, 333 U. S. 257 (1948); In
re Winship, 397 U. S., at 361. Of course, not all
deviations from established procedures result in constitu-
tional infirmity. As the Court noted in Hurtado, to hold
all procedural change unconstitutional -would be to deny
every quality of the law but its age, and to render it
incapable of progress or improvement.- 110 U. S., at
529. A review of the cases, however, suggests that the
case before us is unlike those in which abrogations of
common law procedures have been upheld.
In Hurtado, for example, examination by a neutral
magistrate provided criminal defendants with nearly the
same protection as the abrogated common law grand
jury procedure. 110 U. S., at 538. Oregon, by contrast,
has provided no similar substitute for the protection
provided by judicial review of the amount awarded by
the jury in punitive damages. Similarly, in Interna-
tional Shoe Co. v. Washington, 326 U. S. 310 (1945), this
Court upheld the extension of state-court jurisdiction
over persons not physically present, in spite of contrary
well-established prior practice. That change, however,
was necessitated by the growth of a new business entity,
the corporation, whose ability to conduct business
without physical presence had created new problems not
envisioned by rules developed in another era. See
Burnham, 495 U. S., at 617. In addition, the dramatic
improvements in communication and transportation
made litigation in a distant forum less onerous. No
similar social changes suggest the need for Oregon's
abrogation of judicial review, nor do improvements in
technology render unchecked punitive damages any less
onerous. If anything, the rise of large, interstate and
multinational corporations has aggravated the problem
of arbitrary awards and potentially biased juries.
Punitive damages pose an acute danger of arbitrary
deprivation of property. Jury instructions typically leave
the jury with wide discretion in choosing amounts, and
the presentation of evidence of a defendant's net worth
creates the potential that juries will use their verdicts
to express biases against big businesses, particularly
those without strong local presences. Judicial review of
the amount awarded was one of the few procedural
safeguards which the common law provided against that
danger. Oregon has removed that safeguard without
providing any substitute procedure and without any
indication that the danger of arbitrary awards has in
any way subsided over time. For these reasons, we hold
that Oregon's denial of judicial review of the size of
punitive damage awards violates the Due Process Clause
of the Fourteenth Amendment.
VI
Respondent argues that Oregon has provided other
safeguards against arbitrary awards and that, in any
event, the exercise of this unreviewable power by the
jury is consistent with the jury's historic role in our
judicial system.
Respondent points to four safeguards provided in the
Oregon courts: the limitation of punitive damages to the
amount specified in the complaint, the clear and convinc-
ing standard of proof, pre-verdict determination of
maximum allowable punitive damages, and detailed jury
instructions. The first, limitation of punitive damages
to the amount specified, is hardly a constraint at all,
because there is no limit to the amount the plaintiff can
request, and it is unclear whether an award exceeding
the amount requested could be set aside. See Tenold v.
Weyerhaeuser Co., 127 Ore. App. 511 (1993) (Oregon
Constitution bars court from examining jury award to
ensure compliance with $500,000 statutory limit on
noneconomic damages). The second safeguard, the clear
and convincing standard of proof, is an important check
against unwarranted imposition of punitive damages,
but, like the -no substantial evidence- review discussed
above, supra, at 13, it provides no assurance that those
whose conduct is sanctionable by punitive damages are
not subjected to punitive damages of arbitrary amounts.
Regarding the third purported constraint, respondent
cites no cases to support the idea that Oregon courts do
or can set maximum punitive damage awards in advance
of the verdict. Nor are we aware of any court which
implements that procedure. Respondent's final safe-
guard, proper jury instruction, is a well-established and,
of course, important check against excessive awards.
The problem that concerns us, however, is the possibility
that a jury will not follow those instructions and may
return a lawless, biased, or arbitrary verdict.
In support of his argument that there is a historic
basis for making the jury the final arbiter of the amount
of punitive damages, respondent calls our attention to
early civil and criminal cases in which the jury was
allowed to judge the law as well as the facts. See
Johnson v. Louisiana, 406 U. S. 356, 374, n. 11 (1972)
(Powell, J., concurring). As we have already explained,
in civil cases, the jury's discretion to determine the
amount of damages was constrained by judicial re-
view. The criminal cases do establish-as does our
practice today-that a jury's arbitrary decision to acquit
a defendant charged with a crime is completely unre-
viewable. There is, however, a vast difference between
arbitrary grants of freedom and arbitrary deprivations of
liberty or property. The Due Process Clause has nothing
to say about the former, but its whole purpose is to
prevent the latter. A decision to punish a tortfeasor by
means of an exaction of exemplary damages is an
exercise of state power that must comply with the Due
Process Clause of the Fourteenth Amendment. The
common law practice, the procedures applied by every
other State, the strong presumption favoring judicial
review that we have applied in other areas of the law,
and elementary considerations of justice, all support the
conclusion that such a decision should not be committed
to the unreviewable discretion of a jury.
The judgment is reversed, and the case is remanded
to the Oregon Supreme Court for further proceedings
not inconsistent with this opinion.
It is so ordered.