The Discriminatory Application of Substantive Due Process: A Tale of Two Vehicles
Susan R. Klein | 1997 U. Ill. L. Rev.
Substantive due process review has largely waned, according to many commentators. However, the Supreme Court relied on the doctrine in BMW v. Gore to overturn what it concluded was a grossly excessive punitive damage award against a large corporation. Not two months before this decision, the Court, in Bennis v. Michigan, upheld the ruling that due process was not offended by the confiscation under Michigan's forfeiture statute of an automobile that was jointly owned by a married couple for the criminal misdeeds of the husband. In this essay, Professor Susan R. Klein confronts the irreconcilable outcomes of these two cases, rejecting along the way a number of conceivable justifications for the difference in the decisions. Among the rationales for upholding forfeiture of jointly owned property that the author weighs are vicarious liability, liability for negligent bailment, and the availability of marital property to creditors to satisfy debts incurred by one spouse. The author concludes that the Bennis decision is unjustified and that the Court pieced together a variety of limited doctrines to reach the remarkable result of punishing an innocent property owner.
In particular, Professor Klein argues that reliance on the tort doctrine of respondeat superior liability is misplaced. Spouses do not, the author notes, share vicarious liability for the acts of one another. Even if the doctrine applied to spouses, John Bennis would certainly be deemed under the theory to have been on a "frolic and detour" when he committed the underlying offense. The author similarly concludes that liability for negligent bailment must fail because Mr. Bennis's crime was not foreseeable to Tina Bennis, and she did not have the opportunity to withhold her consent to his use of the jointly owned car. Moreover, the author argues that, although the policy of encouraging financial responsibility may justify joint spousal liability for debts incurred by one spouse, the same rationale does not support holding spouses jointly liable for the criminal acts of one spouse. Finally, Professor Klein contends that any fear on the part of the Court of the impact of overturning the forfeiture statute on the constitutionality of strict liability crimes and corporate criminal liability is unwarranted. The author concludes that the two cases stand as stark examples of the Court's continuing inability to agree on the existence and contours of substantive due process, to develop a test which distinguishes between remedial and punitive sanctions, and to apply substantive due process rigorously to legislation in the criminal law area.
* Assistant Professor of Law, University of Texas at Austin. A.B. 1983, Wellesley College; J.D. 1989, University of California at Berkeley (Boalt Hall). My thanks to Lynn Baker, Sarah Cleveland, Mark Friedman, Douglas Laycock, John Robertson, and William Powers for their insights. I am also grateful to U.T. student Katherine Chiarello for her valuable research assistance.