In an opinion sympathetic in tone to the problems of ordinary consumers but ultimately unable to apply the law to help them, the Ninth Circuit this week rejected a creative argument to protect consumers from exorbitant credit card overdraft and late fees using the due-process protections that shield corporations from large punitive damage awards. The opinion and Judge Reinhardt's "reluctant" concurrence are worth a read — the former as an example to rebut the conservative charge that roving liberal "activist" judges habitually disregard the law in favor of their own policy preferences, and the latter for a primer on how the Supreme Court has been "activist" in the other direction, helping corporations avoid large punitive damages awards based on questionable constitutional analysis.
Judge Reinhardt concludes:
The judiciary is just beginning to explore the principles that the Court has offered in justification of its new constitutional rule and the time for an expansion of its punitive damages jurisprudence may not yet have arrived. I believe, however, that in the end the principles of fairness and equality will dictate that consumers are entitled to (at least) the same constitutional rights as corporations.
