Solving the Aggregate Liability Problem

Here is a familiar legal problem: First, a statute prescribes a damage award for each violation of its terms. Second, a plaintiff sues an individual or small business that has committed many minor violations of the statute. Third, the jury multiplies the defendant’s number of violations by the statute’s per-violation award, imposing an enormous aggregated judgment capable of bankrupting the defendant. Finally, the trial judge unilaterally reduces the jury award, calling it unreasonable or disproportionate to the defendant’s conduct. This dynamic may be a problem in the sense that the damage award is in fact unreasonably large. But it is also a problem in the sense that the judge’s decision to reduce the award subverts the clear terms of the statute. This Note is the first to canvas the tools used by federal district court judges to address this “aggregate liability problem.” It identifies six such tools: three constitutional tools (substantive due process, procedural due process, and the Excessive Fines Clause) and three non- constitutional tools (statutory interpretation, remittitur, and discretion in class certification). The constitutional tools, it argues, are legally suspect and unhelpful at addressing the problem. The non-constitutional tools, by contrast, are appropriate and useful in some circumstances. The Note concludes by considering measures Congress could take to resolve the aggregate liability problem at its source.