Barbara O'Brien

Barbara O'Brien
New York, USA
October 01
Barbara O'Brien is the author of Rethinking Religion: Finding a Place for Religion in a Modern, Tolerant, Progressive, Peaceful and Science-affirming World, available at Amazon. She is the resident expert on Buddhism at and also blogs at The Mahablog.

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JUNE 5, 2009 11:23AM

Update: Sotomayor on Tort

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This is an update to my last post, "Where Does Sotomayor Stand on Tort?" At, Greg Stohr has an analysis of the voting record of Judge Sonia Sotomayor that should be heartening to supporters of the 7th Amendment right to sue for damages.

There is a worrisome trend in many states to place limits on what damages a court may award. These limitations can leave ordinary citizens, especially people with catastrophic injuries or asbestos-related diseases such as mesothelioma, short of the resources they need to take care of themselves

Judge Sotomayor has been nominated to replace the retiring Justice David Souter on the U.S. Supreme Court. Stohr writes that Justice Souter was “a consistent, and often decisive, vote against large judgments.” For example, “He wrote the court’s 5-3 opinion in 2008 cutting $2 billion from the award against Irving, Texas-based Exxon Mobil Corp. for the 1989 Valdez oil spill.”

Sotomayor has not been involved in many cases involving damages. However, she has “twice rejected attacks on punitive damage awards as unconstitutional,” Stohr writes. In 2007, Sotomayor upheld a $1 billion award to Motorola Inc., based in a corporate fraud case. In 1999, she upheld $1.25 million punitive award to a victim workplace sex discrimination.

If Sotomayor does indeed believe that limiting damage awards is unconstitutional, this will be a view shared with two conservative members of the Court, Antonin Scalia and Clarence Thomas. And in a 1996 article of the Suffolk University Law Review in Boston, Sotomayor criticized lawmakers who “introduced bills that place arbitrary limits on jury verdicts in personal injury cases.” To place arbitrary limits on the decisions of jurors is “inconsistent with the premise of the jury system,” she said.

Sotomayor has at times voted to limit damage awards, but in those cases there were legal issues unique to those cases other than the constitutionality of damage awards. Overall, Sotomayor’s record suggests that she will make the Court a little friendlier to damage awards.

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Good for you for championing real torts. So many people in our society are innumerate, they just kind of glaze over when large numbers are discussed. I doubt they realize that the about of every damage has to be proven in court, that a juy of people just like them looked at the evidence and the explained math and agreed with the numbers.
The closet liberal in me thinks that this is a good thing. Make the bastards pay! Often, the only way to get a point across in torts is with a very large damage award--one that will hurt. For some that's $100 for others thats$100 million. Thanks for bringing this up.