Martha McCluskey, at Buffalo Law School, has published a new article on economic inequality, Constitutionalizing Class Inequality: Due Process in State Farm, 56 Buffalo Law Review 1035 (2008), analysing the 2003 State Farm case, which "corporate lawyers billed as 'a big win for corporate America'." McCluskey had earlier mined State Farm, a case in which the Utah Supreme Court found that the company had "systematically, deliberately, and even maliciously violated consumers' contractural rights in order to increase its profits" but yet the Supreme Court overturned a jury's punitive damage award against the corporate defendant. That earlier article discussed how corporations distort the civil justice system in which artificial persons (large corporations) and their owners are systematically privileged over natural persons (individuals). She revisits State Farm here "to analyze its implications for understanding the treatment of class in constitutional doctrine." [emphasis in original]. She finds a striking contrast in the Court's view of the inappropriateness of discretion in the award of punitive damages against corporate defendants, compared to its view of the appropriateness of discretion in matters of life and death such as domestic violence or criminality.
The Court treats criminal defendants or victims of domestic violence as normally and naturally (and beneficially) subject to the regulatory authority of criminal juries or police, even though it recognizes that these authorities can be irrational or unwise. But, in the Court’s view, the authority of state courts to regulate the organized interests of capital owners appears less normal and natural (and less obviously beneficial).
Here's an excerpt from the abstract for the article, which is definitely worth reading by those who want to understand how class --and corporatism--work in America.
I argue that some of the most important doctrinal action on questions of economic class in the Constitution takes place under the rubric of procedure. First, class inequality is constitutionalized by casting substantive protections for wealthy capital owners in a procedural guise, as narrow technicalities or as neutral formal principles. Second, class inequality is constitutionalized by recasting basic procedural protections for the non-wealthy into illegitimate and anti-democratic claims to substantive rights.
On the surface, the State Farm case seems to present a fairly narrow doctrinal issue concerning punitive damages that generally seems marginal to general discussions of Constitutional economic equality rights. But beneath the narrow doctrinal issue lie assumptions about economic class that have broader implications. State Farm covertly revives the Lochner era ideology that fundamental procedural fairness requires insulating organized capital interests from government accountability or constraint. Even though U.S. doctrine has emphatically rejected the idea of heightened scrutiny for economic policies treating workers or the poor unequally, the State Farm decision surreptitiously adopts a "strict scrutiny" approach to examining economic harm to large businesses. Finally, the State Farm decision constitutionalizes class inequality by interpreting conscious class opposition to wealthy capital owners as fundamentally arbitrary and irrational.
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