Issue 5

Surprisingly Punitive Damages

Think first of the classic problem of redundant punitive damages: A defendant has caused a mass tort. Plaintiff 1 sues, winning punitive damages based on the overall reprehensibility of that original act. Plaintiff 2 also sues—and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth.

Next, consider a more subtle problem: Many statutes set the minimum award per claim at a super-compensatory level, based on the assumption that private suits may need extra inducement. But when enforcement turns out to be more vigorous than was assumed—most famously, when thousands or millions of claims are brought at once—then the damages in even a single case can stack up to surprisingly punishing effect.

These problems share a conceptual feature that I analyze here: The damages in each context can be seen as encompassing two distinct components—a “variable” portion that properly varies with the number of claims, and a “fixed” portion that should be awarded only once. The crucial error that leads to surprisingly punitive damages is repeatedly awarding not only the variable but also the fixed component of damages, in cases with multiple claims.

One natural solution for neutralizing such redundancy is to allow courts to run concurrently the fixed component of such repeated awards.  This paper explores how a “concurrent damages” approach might be applied to variations of each problem; addresses its pros, cons, and complications; and explores how it relates to other procedural devices, including preclusion and aggregation.

States as Interest Groups in the Administrative Process

A rising tide in federalism scholarship and political discourse accords unmitigated praise to the notion of partnership between states and federal agencies. This Article reveals a more complicated picture. It begins by analyzing the penetrating but usually invisible role of “state interest groups”—lobbying associations of state officials—in shaping federal regulation. These groups have become the core vehicle for state involvement in federal administration, but surprisingly, their pervasive and critical role is rarely noted in the legal literature.

The Article shows that the pathologies of state interest groups reflect broader, latent tensions within the emerging project of administrative federalism. To develop this claim, the Article disaggregates a trio of benefits thought to flow from state involvement in federal administration—protecting state power, enhancing agency expertise, and maintaining a democratically accountable process—and shows that these benefits are unlikely to coincide. Instead, mechanisms designed to pursue state power as an end in itself thrive at the expense of expertise and accountability. The project of affording states a voice in the federal regulatory process must therefore begin to take account of tradeoffs among key goals, not just benefits. The Article closes by sketching best practices to help agencies, courts, and states balance the competing goals of administrative federalism.

Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination in the Information Age

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals with criminal records have never been convicted of a crime, as one-third of felony arrests never result in conviction. And criminal records databases routinely contain significant errors, including false positive identifications and sealed or expunged information.

The negative impact of employers’ reliance on criminal records databases falls most heavily on Black and Latino populations, as studies show that the stigma of having a criminal record is significantly more damaging for racial minorities than for Whites. This criminal record “penalty” limits profoundly the chance of achieving gainful employment, creating new and vexing problems for regulators, employers, and minorities with criminal records. Our existing regulatory apparatus, which is grounded in Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act, is ill-equipped to resolve this emerging dilemma because it fails to address systematic information failures and the problem of stigma.

This Article, therefore, proposes a new framework drawn from core aspects of anti-discrimination laws that govern health law, notably the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act. These laws were designed to regulate the flow of information that may form the basis of an adverse employment decision, seeking to prevent discrimination preemptively. More fundamentally, they conceptualize discrimination through the lens of social stigma, which is critical to understanding and prophylactically curbing the particular discrimination that results from dual criminal record and minority status. This health law framework attends to the interests of minorities with criminal records, allows for more robust enforcement of existing laws, and enables employers to make appropriate and equitable hiring decisions, without engaging in invidious discrimination or contributing to the establishment of a new, and potentially enduring, underclass.

©Virginia Law Review Association. All rights reserved.