Volume 100
We the People: The Original Meaning of Popular Sovereignty
The Constitution is based on popular sovereignty. But who are the People? Two hundred and twenty six years after the ratification of the Constitution, the answer to this question is still debated. This Note jumps into the fray, closely examining the Constitution itself and the history surrounding its adoption in order to reverse-engineer a coherent theory of American popular sovereignty as it was understood at the time of ratification and the adoption of the Bill of Rights. Did the state peoples exist as sovereigns before the Constitution? If yes, did the Constitution consolidate them into one unitary national people? If not, is there a national people in addition to the state peoples? In short, there is a national people, but it coexists with the sovereign state peoples. Furthermore, the national people must be interpreted through a lens of state peoples—the People is national in scope and importance, but it is defined in reference to the state peoples. The reservoir of reserved powers—those uses of governmental authority that are not expressly mentioned in the text of the Constitution—defaults to the state level. This balance of peoples means that the American system is one of limited sovereignty. Neither the federal nor the state governments can eliminate or alter the other; they reinforce each other in a structure that presupposes its perpetuity. Dual popular sovereignty is the essence of federalism, and it has broad implications for the fundamental distribution of power between the federal government and the states.
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.