I'VE SEEN MORE THAN one commentator excuse the $28 billion punitive damages award against Philip Morris on the grounds that Philip Morris had $72.9 billion in revenue (revenue, not profits) last year.

Philip Morris (MO) has $72.9 billion of revenue not just because of cigarettes, but because they sell a lot of cheese and coffee and cereal and beer and mayonnaise and Jell-O brand gelatin.

So any punitive damages award based on the size of MO's revenues is punishing Philip Morris for being successful at selling cheese. After all, if MO sold less cheese, then the punitive damages would be lower, right?

Yes, punitive damages need to make the tortfeasor feel the sting: I need a larger punitive damages award to deter Warren Buffett from deliberately smashing in my windshield than I do for the guy from the "Bumfights" video. But that rationale doesn't apply to corporations that are being punished for selling products. If they are large, it is because either (1) they sell a lot of innocuous products, and shouldn't be punished for that, or (2) they sell a lot of sinister products, and they will face punitive damages in a lot of other lawsuits. If Philip Morris did something wrong to this lady, there are 10,000 other people that they did something wrong to. If each of those cases award $3 million in punitives, then Philip Morris feels the sting appropriately.

It would be one thing if the $28 billion were a one-time punitive damages award, and Philip Morris would never be punished again. But there are hundreds of other lawsuits from smokers, each of which is seeking punitive damages, and not one of which will be precluded from doing so by this jury's award. This jury's award is thus unreasonably high, because it's punishing Philip Morris for being big than for doing something wrong. There is absolutely no economic rationale to have punitive damages for products liability be more than some reasonable multiple of actual damages.

Of course, actual damages are inappropriate here, also. There's no evidence that the sine qua non of this woman's smoking was Philip Morris's behavior, as opposed to her lack of willpower. Lots of people quit smoking with encouragement from the cigarette companies. Lots of people smoke now even though cigarette companies frankly admit that smoking is dangerous. (Indeed, according to Kip Viscusi, smokers overestimate the risk of smoking.)

I don't smoke, I get annoyed at people who smoke in front of me on a moving escalator, but I still recognize this as a dangerous dangerous case. If the government has the power to randomly swoop in and take a third of your revenues for the year, well, that's a huge disincentive to doing business or investing in a business that can face such confiscatory policies. The same is true when the government's power is backed by a random assortment of twelve underemployed people and a judge who hates corporations. This isn't just cigarettes, it's hospitals, auto manufacturers, food sellers, retail stores, banks, etc. Jury verdicts like this do more damage to the economy than a hundred Ken Lays.

A SAUDI EMIGRE CAMPAIGNS against Saudi intolerance: "America must come and force reform on us, because we are incapable of it." (via Corsair)

A COLLEAGUE TRIED TO talk to me about the New Jersey Supreme Court decision today, and I waved him off, on the grounds that I was old and cynical, and I have come to accept that a bunch of state court judges are going to throw the law out the window to come to a preferred result. It's part of what I call the Judge Judy-ization of the law: judges ignoring legal principles and acting as Solons to dispense rough justice on a case-by-case basis. Editorial page writers will be pleased with some opinions, displeased with others, and the judges feel more important. And, in their role as enlightened despots and philosopher-kings, the New Jersey Supreme Court came to a pretty good decision: let's let a new candidate enter the election.

Now it goes to the U.S. Supreme Court, and there are no happy results: the Court can follow its role and place in federal law and do nothing, which would be procedurally correct on their end, but leave in place the procedural disaster of the New Jersey Supreme Court. Or, they can repeat the Bush v. Gore fiasco, and correct the wild mistakes of a state court, at the expense of the politicization of the institution. This would actually be worse than Bush v. Gore, since there was at least a federal interest that the Court protected by reversing the ugly and even more unforgivable Florida Supreme Court decision.

Of course, if you care about things like the law and consistency in application of the law and separation of powers, Professor Volokh dismantles the New Jersey opinion in a few short paragraphs. Volokh goes on to suggest in later entries, correctly in my view, that there really isn't much of a federal reason for the Supreme Court to take this case.

The Professor's mistake is presuming (if, perhaps, only for the sake of argument) that this opinion is anything other than sui generis.

The thing is, though, that if judges are going to create new law on a case-by-case basis, well, that's not only bad for those of us who would like the law to be predictable so that we can advise our clients on how best to act within the law, but it also brings into full relief the undemocratic nature of most courts, and the executive branch will be hard-pressed to complain when the legislative branch wants to put a little more scrutiny into its duty to advise and consent to judicial nominations. Maybe it's not enough to be a brilliant and fair-minded law professor, a la Michael McConnell, if that law professor has policy views that differ stringently from the mainstream on issues like abortion and church-state separation, a la Michael McConnell.

In an ideal world, judges act as judges, and McConnell is a more than appropriate choice for the bench. But if judges are going to be overriding legislative policy, my standards change.

The breakdown exhibited by the New Jersey Supreme Court is problematic for other reasons. If the New Jersey Supreme Court is not bound by the policy decisions of the legislature, on what grounds are the lower courts bound by the decisions of the New Jersey Supreme Court?

EUGENE VOLOKH steals my thunder by blogging just about word for word what I was going to say about Dahlia Lithwick's interesting Slate piece on Winona Ryder. To wit: good piece, unfair slam at Ken Starr. Adding what Volokh left out: Starr, a former solicitor general, gave up a $2 million/year law practice to take what he viewed to be a public service position. Whatever his faults as special counsel in the Whitewater affair (faults magnified by the Clintons' strategy of an unprecedented stonewall of failing to cooperate), Starr wasn't doing it for personal glory, and cannot be said to have improved his career prospects by his actions. Starr made himself political mud, costing him a shot at a Supreme Court seat, and returning to his law firm at a sharply reduced salary.

I LIKE THE supposed top Belgian joke.

Why do ducks have webbed feet?
To stamp out fires.

Why do elephants have flat feet?
To stamp out burning ducks.

HEY, LILEKS! A MARVELOUS SITE WITH Warner and Disney World War II propaganda cartoons that never get shown on television, either because of the Japanese racial stereotypes, or the disturbing image of Donald Duck wearing a swastika and heiling Hitler, or because we are friends with Germany and we have always been friends with Germany.

I HAVE TO SAY THAT the recent Montgomery County shootings have really highlighted the worst aspects of blogs -- lots of uninformed speculation and unfounded conclusion-jumping. I read all sorts of scenarios drawn from the supposed fact that the victims were killed with one shot each (not so: one shooting didn't kill anyone; the Sarah Ramos shooting left a bullet-hole in a window); that the killings used a super-bullet that left no blood (contradicted by witnesses who saw blood); that the newspapers were hiding the race of the victims (not so); that the newspapers were hiding the race of the gunmen when there's no sign that anyone has seen the gunman or gunmen. The Bryan Preston post that C-Boy linked to was interesting in its discussion of al Qaeda terror tactics -- but Preston completely overstates the claim that the scenarios described in the terror-training tape had any similarity to the shooting spree. They didn't. Is the urge to get an Instalink so great that people feel compelled to rush to be the first add to the noise surrounding the signal? What I read in blogs today subtracted from the discourse rather than added to it.

YOU KNOW, I AM A FIRM believer against discrimination on the basis of skin color, but, upon further reflection, I need to make an exception when the skin color (in this case, blue), is the result of self-induced stupidity.

UNINTENDED CONSEQUENCES, EXAMPLE No. 736. The federal Equal Access Act for Secondary Schools, designed in reaction to urban legends of Christian clubs not being allowed to meet in school, also requires acceptance of the Satanist Thought Society, and local Christians are shocked that such a club is in the high school.

SOMALI WOMEN'S RIGHTS ACTIVIST faces death threats in the Netherlands for criticizing Muslim attitudes towards women. According to another piece,

[One publication interviewed] Ali Eddaoudi, a writer and prison chaplain here in The Netherlands. According to him, "Hirsi Ali has created this problem herself". He accuses her of flirting with the Dutch and telling them what they want to hear. "She wants to be popular without weighing-up the consequences. You can't just say whatever you want, she's hurting people badly" he claims as justification for the threats.

NEAL POLLACK has stopped channelling Andrew Sullivan and is now channelling Tom Tomorrow, with hilarious consequences.

LITERATE SPEED METAL.

BIG POTHOLE.

DISTURBING LIST OF ANTI-SEMITIC incidents at the University of Chicago.

I AM SURPRISED TO learn that it is suddenly a controversial proposition that Supreme Court clerks are screened on ideology. The issue arose in the Estrada hearings.

My appellate clerkship was for a prominent Reagan appointee. I was made to understand that, as a result, I had no hope for a clerkship with the three most liberal justices on the bench in the early 1990s. It was well known that the clerks for these justices blocked resumes from those without sufficient left credentials from getting considered. (I was similarly disqualified from Justice Thomas's consideration because I had not been a member of the Federalist Society.) The only reason to apply was an anecdote that Justice O'Connor had been offended by a candidate that had failed to apply to every single justice for a clerkship. (She didn't select me, either.)

The Senate has the power to advise and consent to judicial nominations, and if they want to screen nominees on ideology, they're certainly entitled: there's no question Estrada was picked on ideological grounds. It's an ugly thing, however, if he's retroactively disqualified for something he did that was considered of no moment in the 1990's. If he was screening candidates for Kennedy, it was because Kennedy wanted him to, and there's no indication that Estrada was acting outside the scope of his agency.