Thanks to our former colleague Mitch Morris for his contributions to the article.
I. Introduction
A core principle of our Constitutional Republic is that the Government cannot “deprive any person of life, liberty, or property, without due process of law[.]”[1] Notably, the Framers did not distinguish between these ideals, treating property as worthy of protection as life and liberty.[2]
That said, few have commented on the intersection of the Federal Constitution’s Due Process Clauses and tort law.[3] Amorphous by design, tort law generally has remained flexible enough to meet the established fact patterns that arise under it while retaining enough rigidity to allow for predictability. That system has endeavored to secure the safeguards against unjust deprivations of property enshrined in the Due Process Clauses.
However, these once established principles are now in flux. Over the last three decades, the United States has seen a rise in class action lawsuits and other aggregated litigation, along with the radical expansion of novel tort theories that bear little resemblance to those that traditionally existed at common law. Businesses and other would-be defendants now face an increasing likelihood that they may be held liable for past conduct that was not clearly (or even conceivably) tortious at the time it occurred.
An example of this trend is the Supreme Court’s 2019 decision in Air & Liquid Systems Corp. v. DeVries,[4] where it announced a new test under which manufacturers may be retroactively liable for failing to warn end consumers about other companies’ products decades before such a duty was imposed.[5] As dissenting Justice Gorsuch insightfully observed, the majority’s holding poses a “fair notice problem.”[6] It puts manufacturers “at risk of being held responsible retrospectively for failing to warn about other people’s products . . . a duty they could not have anticipated then and one they cannot discharge now.”[7]
So what are businesses and others to do? Stand at risk of being held responsible for failing to comply with duties they could not have anticipated and cannot travel back in time to discharge? Or, as Justice Gorsuch questioned, “can [they] only pay”?[8]
The answer is that defendants must find new ways to defend against novel theories of tort liability. As a result, we recommend freshly assessing what due process requires to try to curb tort law’s seemingly inexorable expansion.
“Fair notice” is not a novel concept—it lies at the very heart of our justice system. It mandates “fundamental fairness” at all times, in all circumstances, and for all defendants, regardless of context,[9] and without exception for corporate manufacturer defendants or cases with sympathetic plaintiffs.[10]
We begin by analyzing the historical foundations of fair notice. We then consider the Supreme Court’s current conception and application of fair notice principles, focusing on the Due Process Clauses’ limitations for punitive and aggregated statutory damages, before addressing how those considerations bear on tort liability as a whole.
II. The Historical Concept of Fair Notice
It is beyond dispute that “[f]rom the inception of Western culture, fair notice has been recognized as an essential element of the rule of law.”[11] Indeed, from the Code of Ur-Nammu to the Laws of Eshnunna, the Code of Lipit-Ishtar, the Code of Hammurabi, and, perhaps most famously, the Ten Commandments, the written law has been enshrined as a cornerstone of equity inherent to our collective sense of justice. Indeed, written law not only provides notice to the governed, but also imposes significant restraints on those governing.
Thus, fair notice principles have always extended to the civil realm, promoting social efficiency by allowing the public to order its behavior to an established legal framework.[12] Put simply, people and corporate entities are more confident taking the business risks that drive our economy when they are sure they know, and are complying with, the applicable laws.[13]
In framing the historical underpinnings of fair notice, we begin with Ancient Greece. There, in the 7th century B.C., the Athenians were governed by an oral law often manipulated by the aristocracy. In response, the people demanded publication of the laws to prevent those in power from changing the rules to suit their own needs. Though they may have gotten more than they bargained for in the infamous Draconian Constitution, its enactment resulted in the law being housed at a central location, accessible to anyone, and freely available to be read by the literate public. This development marks one of the earliest examples of the citizenry demanding a written law to provide boundaries to those in power. Indeed, the principle encapsulated in the maxim nulla poena sine lege—or “no punishment without law”— “dates from the ancient Greeks” and is among the most “widely held value-judgment[s] in the entire history of human thought.”[14]
Of course, publication was not ubiquitous. In the early days of English justice, for example, there was no promulgation at all. Crime and tort were indistinct concepts, neither of which was governed by written law.[15] As a result, tribal blood feuds were often resolved by payments—both compensatory and punitive—in place of vigilantism. At first, these payments were customary. But they became mandatory. And those payments were owed not only to the victim or the victim’s family, but also to the King or lord. As the feudal structure grew more complex, so did this dispensation of justice. Eventually, the sheer volume of triggering charges rendered it “practically impossible” for the accused “to ‘buy back the peace once it had been broken.’”[16]
The wrongdoer was then forced to throw himself at the mercy of the King, surrendering his body and goods in exchange for being restored to the protection of the law.[17] At this point, the offender was said to be “a mercie” or “at the [K]ing’s mercy” with respect to his goods’ dispensation. Thus, the accompanying fine became known as an “amercement.” [18] Unlike the earlier tribal payments, however, Professor John Calvin Jeffries notes that amercements “were not levied according to any fixed schedule but arbitrarily according to the degree that the [K]ing or his officers chose to relax the forfeiture of all the offender’s goods.”[19] Therefore, “the amercement functioned as an ad hoc fine, levied in potentially unlimited amounts as a form of civil punishment for a very wide range of delicts and offenses.”[20] Naturally, the King and lords abused that authority.
It is thus unsurprising that among the restraints of monarchical power embodied in Magna Carta were three separate chapters expressly limiting amercements. By demanding these provisions’ inclusion, we see a deliberate move by the English people in A.D. 1215 —much like the 7th century B.C. Athenians—to shift the law from an unbridled oral tradition to one with written limitations.[21]
John Locke emphasized that point in his Second Treatise of Government. Locke, stressing the significant work fair notice does in constraining the government’s power: “The legislative, or supreme authority . . . is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges[.]”[22] Locke continued
To avoid [the] inconveniencies, which disorder men’s properties in the state of nature, men unite into societies, that they may . . . have standing rules to bound it, by which everyone may know what is his. To this end it is that men give up all their natural power . . . that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty, as it was in the state of nature.[23]
Concepts of fair notice and promulgation are scattered across history. On that point, we observe that the American Framers understood this rich tradition.[24] The principle of antirectroactivity can be found throughout the Constitution in the Ex Post Facto, Contracts, and Takings clauses, as well as the prohibition on “Bills of Attainder,” among others.[25] Perhaps most significantly for our purposes, are the inclusion of the Due Process Clauses—both under the Fifth[26] and Fourteenth Amendments[27]—which make clear that interests in fair notice and repose may be compromised by retroactive legislation.[28]
Alexander Hamilton, writing as Publius, observed in the Federalist Papers that the above “prohibition[s]” are among the “greater securities to liberty and republicanism than any [the Constitution] contains.”[29] Justice Story likewise observed in his Commentaries on the Constitution that “[r]etrospective laws are, indeed, generally unjust; and, as has been forcibly said, neither accord with sound legislation nor with the fundamental principles of the social compact.”[30] St. George Tucker likewise described ex post facto and retroactive laws to be among the most “formidable” and “odious” exercises of power.[31]
III. An Untapped Constitutional Defense: The Intersection of Fair Notice and Tort Liability
The Framers designed the American civil justice system to incorporate the millennia-old concept of fair notice. Thus, participants in this system are entitled to its protections. We submit this includes an entitlement to knowledge of the duties to which the citizenry will be held before being called to answer for allegedly tortious conduct.[32]
In framing that defense, our analysis proceeds in three steps. First, we summarize the Supreme Court’s current conception of fair notice. Second, we address the key facets of civil liability for which courts have thus far imposed due process limitations: punitive damages and aggregated statutory awards. Third, we examine how expanding those already-recognized limitations to general liability in novel tort cases is not only reasonable but compelled by the unprecedented fair notice concerns raised by modern litigation.
A. The Current Understanding of Fair Notice
The Supreme Court has continued to emphasize the role that fair notice plays in our justice system—both in the regulatory and civil contexts. For example, the Court recently noted that “the most basic of due process’s customary protections is the demand of fair notice.”[33] Likewise, the Court has observed that “[a] fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”[34] In short, “[w]ithout an assurance that the laws supply fair notice, so much else of the Constitution risks becoming only a ‘parchment barrie[r]’ against arbitrary power.”[35]
B. Recognized Due Process Limitations on Civil Damages
Courts have already shown a willingness to apply these limitations to certain awards in the civil context. We discuss the two most relevant examples below.
I. Punitive Damages
The best-known application of due process principles in the civil arena is to awards for punitive damages. The Supreme Court has unequivocally proclaimed that “[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.”[36] In particular, “[t]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.”[37] “The reason is that ‘[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice’” both “‘of the conduct that will subject him to punishment’” and “‘the severity of the penalty that a State may impose.’”[38] Stated differently, a defendant has a constitutional “entitlement to fair notice of the demands that the several States impose on the conduct of its business.”[39]
The imposition of compensatory tort liability is no less an “exercise of state power” than the imposition of punitive damages. The Supreme Court recognized decades ago that “‘[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.’”[40] Therefore, the fair notice principles applicable to punitive damages should apply equally to compensatory tort liability as well.
II. Aggregated Statutory Damages
Over a century ago, the Supreme Court announced that statutory damages were presumptively constitutional and could violate the Due Process Clauses only if they were “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”[41] That said, courts recently have been wrestling with the constitutionality of statutory damages in the aggregate, especially in the context of class actions.[42]
The Ninth Circuit found these damages could be subject to due process limitations under certain circumstances. In Wakefield v. ViSalus, Inc.,[43] the court found that, while “[j]uries and legislatures enjoy broad discretion in awarding damages,” “[t]he due process clauses of the Constitution . . . set outer limits on the magnitude of damages awards.”[44] The court reasoned that “where statutory damages no longer serve purely compensatory or deterrence goals, consideration of an award’s reasonableness and proportionality to the violation and injury takes on heightened constitutional importance.”[45] Thus, “even where the per-violation penalty” would be “constitutional,” aggregated statutory damages remain “subject to constitutional limitation[.]”[46]
This decision is a significant example of courts’ willingness to apply due process’s limiting principles beyond punitive damages. Along with Justice Gorsuch’s dissent in DeVries arguing against the majority’s ad hoc imposition of duties on manufacturers decades after the fact, the Ninth Circuit’s decision shows a judicial openness to reining in ever-expanding civil liability under fair notice principles.
C. Applying Fair Notice to Novel Theories of Tort Liability
The driving force behind tort law in America for centuries has been the desire to compensate victims for losses incurred due to the improper acts of another. On the other hand, the people have a constitutional and ancient common law right to fair notice of what conduct could expose them to liability. To that end, courts’ imposition of new duties on defendants under novel tort theories is an area of civil law—like punitive and aggregated statutory damages—primed for constitutional protection under fair notice and due process principles.
Retroactively imposing duties of care strips defendants of any rational, predictable criteria for measuring the law’s expectations of them. Nor does it provide any way for society at large to conform its behavior or reasonably defend itself after the fact. “Should’ve, Would’ve, Could’ve” is not a fair or reasonable standard for imposing tort liability. Indeed, as Fourth Circuit Judge Paul Niemeyer observed, there are three “essential traits of the rule of law: predictability, order, and rationality.”[47]
It is this first essential trait with which we are most concerned. For millennia, the driving force behind Western civilization’s conception of justice has been the notion that one should be able to predict the punishment for failing to conform with general standards. As Justice Gorsuch put it, “[p]eople should be able to find the law in the books; they should not find the law coming upon them out of nowhere.”[48] But that is exactly what people find when courts announce new duties and give them retroactive effect. Boundless liability—untethered from the common law—obliterates any semblance of fair notice.
IV. Conclusion
Enduring principles of “fundamental fairness”[49] and “the community’s sense of fair play and decency”[50] still lie at the heart of our legal system. Fair notice remains a foundational unyielding aspect of the rule of law. And civil litigations ought to fight to expand due process’s application—not shy away from it—especially when faced with novel theories of liability.
[1] U.S. Const. amend. XIV, § 1 (emphasis added); see also U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law[.]” (emphasis added)).
[2] “[D]ue process protection for property must be understood to incorporate our settled tradition against retroactive laws of great severity.” E. Enters. v. Apfel, 524 U.S. 498, 549 (1998) (Kennedy, J., concurring in part and dissenting in part).
[3] For examples of scholarship on related issues, see Professor Mark Geistfeld’s articles Constitutional Tort Reform, 38 Loy. L.A. L. Rev. 1093 (Spring 2005) [“Constitutional Tort Reform”], and Due Process and the Determination of Pain and Suffering, 55 DePaul L. Rev. 331 (2006).
[4] 139 S. Ct. 986 (2019).
[5] Consider how this holding conflicts with the Supreme Court’s decision in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), where the Court disapproved of the Coal Act’s creation of “liability for events which occurred 35 years ago,” calling it “a retroactive effect of unprecedented scope.” Id. at 549 (Kennedy, J., concurring in part and dissenting in part).
[6] DeVries, 139 S. Ct. at 999 (Gorsuch, J., dissenting).
[7] DeVries, 139 S. Ct. at 999 (Gorsuch, J., dissenting).
[8] Id.
[9] John Calvin Jeffries, Jr., A Comment on the Constitutionality of Punitive Damages, 72 Va. L. Rev. 139, 152 (1986) (citation omitted) (emphases added).
[10] See Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960).
[11] Note, Textualism as Fair Notice, 123 Harv. L. Rev. 542, 543 (2009).
[12] “[T]he point of due process—of the law in general—is to allow citizens to order their behavior.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003) (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 59 (O’Connor, J., dissenting)).
[13] See id. at 417-18; see also Note, Textualism as Fair Notice, supra n. 11 at 543.
[14] Rogers v. Tennessee, 532 U.S. 451, 467–68 (2001) (Scalia, J., dissenting) (quoting J. Hall, General Principles of Criminal Law 59 (2d ed. 1960)).
[15] Jeffries, supra note 9 at 154.
[16] Id. (quoting W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 285 (2d rev. ed. 1914)).
[17] Id.
[18] Id. (citation omitted).
[19] Id. at 154–55 (citation omitted).
[20] Id. at 155.
[21] See also Goldington v. Bassingburn, Y.B. Trin. 3 Edw. II, f. 27b (1310).
[22] Note, Textualism as Fair Notice, supra note 11, at 544(quoting John Locke, Second Treatise of Government 83–84 (Richard H. Cox ed., Harlan Davidson, Inc. 1982) (1690)).
[23] Id. at 544–45 (quoting John Locke, Second Treatise of Government 83–84 (Richard H. Cox ed., Harlan Davidson, Inc. 1982) (1690)) (emphasis added).
[24] Id. at 545.
[25] U.S. Const. art. I, § 9, cl.3; id. art. I, § 10, cl.1; id. amend. 5.
[26] U.S. Const. amend. V.
[27] U.S. Const. amend. XIV, § 1.
[28] Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976). But see id. at 16 (“[O]ur cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability based on past acts.” (internal citations omitted)).
[29] The Federalist No. 84 (Alexander Hamilton, writing as Publius).
[30] 2 Joseph Story, Commentaries on the Constitution of the United States § 1398 (5th ed. 1891); see also Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (CCNH 1814) (Story, C.J.).
[31] Tucker, St. George, View of the Constitution of the United States with Selected Writings 232–33 (Liberty Fund, Inc. 1999) (1803).
[32] After all, at its core the law is a “systematized prediction,” a “body of dogma enclosed within definite lines.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 458–59 (1897).
[33] Sessions v. Dimaya, 138 S. Ct. 1204, 1225 (2018) (Gorsuch, J., concurring in part) (citation omitted).
[34] FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012) (citation omitted); see also Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 156 (2012); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972); U.S. v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997).
[35] Sessions, 138 S. Ct. at 1227 (Gorsuch, J., concurring in part) (quoting The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison)).
[36] Honda Motor Co. v. Oberg, 512 U.S. 415, 434–35 (1994).
[37] Campbell, 538 U.S. at 416 (citations omitted).
[38] Id. (quoting BMW v. Gore, 517 U.S. 559, 574 (1996) (emphasis added)).
[39] Gore, 517 U.S. at 574 (citations omitted); see also Philip Morris USA v. Williams, 549 U.S. 346, 354 (2007) (describing “lack of notice” as one of “the fundamental due process concerns to which our punitive damages cases refer[.]”).
[40] Cipollone v. Liggett Grp. Inc., 505 U.S. 504, 521 (1992) (quoting San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959)).
[41] St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66-67 (1919) (citations omitted); cf. Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 111 (1909).
[42] Golan v. FreeEats.com, Inc., 930 F.3d 950, 962–63 (8th Cir. 2019); Parker v. Time Warner Ent. Co.¸331 F.3d 13, 22 (2d Cir. 2003).
[43] 51 F.4th 1109 (9th Cir. 2022).
[44] Id. at 1120.
[45] Id. at 1122–23 (citations omitted).
[46] Id. at 1123.
[47] Paul V. Niemeyer, Awards for Pain and Suffering: The Irrational Centerpiece of Our Tort System, 90 Va. L. Rev. 1401, 1402 (2004).
[48] DeVries, 139 S. Ct. at 1000 (Gorsuch, J., dissenting).
[49] Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 24-25 (1981).
[50] Rochin v. California, 342 U.S. 165, 173 (1952).
