dissenting.
If the only issue in this case were whether a punitive damages award of $175,000 is “grossly excessive,” given defendant’s conduct and the jury’s $6,000 compensatory damages award, I would have little trouble concluding that it is not. However, the Supreme Court has instructed us not only that punitive damages awards that are “grossly excessive” are impermissible because they violate the Due Process Clause, see State Farm Mut. Automobile Ins. Co. v. Campbell, 538 US 408, 416, 123 S Ct 1513, 155 L Ed 2d 585 (2003), but it also has provided “guideposts” that this court, and other lower courts, must use in reviewing punitive damages awards for compliance with the Due Process Clause. Id. at 418. My disagreement with the majority is based on its application of those guideposts — or, rather, its failure to apply one of those guideposts because of what it views as an exception to the guidepost.
Before turning to the majority’s rationale for its conclusion that a 22:1 ratio of punitive to compensatory damages in this case is consistent with the Supreme Court’s case law, I pause briefly to consider this court’s obligation to follow the Court’s guidance. When the Supreme Court decides a case, its decisions almost invariably contain “explanatory language that is intended to provide guidance to lawyers and judges in future cases.” Carey v. Musladin, 549 US 70, 79, 127 S Ct 649, 166 L Ed 2d 482 (2006) (Stevens, J., concurring in the judgment). Lower court judges may not “discount the importance of such guidance on the ground that it may not have been strictly necessary as an explanation of the Court’s specific holding in the case.” Id. Indeed, even when applying its own precedents, the Court generally “adhere[s] not only to the holdings of our prior cases, but also their explications of *545the governing rules of law.” Allegheny County v. Greater Pittsburgh ACLU, 492 US 573, 668, 109 S Ct 3086, 106 L Ed 2d 472 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part). Thus, to my mind, when the Court states that specific numerical ratios should be applied to determine whether a punitive damages award exceeds constitutional limits, those statements are not mere dicta, but rather constitute binding precedent that we are obliged to follow. Our federal system requires us to do what the Court says, not only what the Court does.
To be sure, the majority does not contend that we are free to ignore the Court’s “ratio” guidepost. However, in relying on the “small” amount of compensatory damages awarded in this case to justify departing from the numerical standards that the Court has articulated, the majority, in my view, improperly “discount[s] the importance of [the Court’s] guidance.”
As to the substance of the majority’s conclusion, it appears to me that the majority’s approach turns on two key steps. First, it asserts that the Supreme Court has recognized an exception to the ratio guidepost for any “small” award of compensatory damages. Second, it concludes that any compensatory damages award less than $12,000 - $25,000 is “small.”
Both conclusions are problematic. The identified exception to the ratio guidepost is not for all “small” damages awards, but only for those that also involve particularly egregious misconduct — which is not true in this case. More importantly, it is bad policy to allow punitive damages awards to be open-ended below some arbitrary amount of compensatory damages deemed “small,” because it means that many defendants who do more harm will be punished less.
I begin with the applicable law. Briefly, the Supreme Court has articulated three guideposts to be used to determine whether a punitive damages award exceeds the limits of due process:
“(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential *546harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.”
Campbell, 538 US at 418; see BMW of North America, Inc. v. Gore, 517 US 559, 574-75, 116 S Ct 1589, 134 L Ed 2d 809 (1996) (same).
My primary dispute with the majority relates to the second of those guideposts: the relationship between punitive and compensatory damages. The purpose of the ratio guidepost is to “ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.” Campbell, 538 US at 426; see Gore, 517 US at 580 (noting that “[t]he principle that exemplary damages must bear a ‘reasonable relationship’ to compensatory damages has a long pedigree”). Although the United States Supreme Court has declined to set any bright-line limits for those ratios, the Court has expressly stated “that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Campbell, 538 US at 425; see id. (“[s]ingle-digit multipliers are more likely to comport with due process”). And, in an exhaustive discussion of Gore and Campbell, this court concluded that punitive damage awards generally should be limited to single-digit ratios — and in cases of purely economic injury, to a 4:1 ratio. See Goddard v. Farmers Ins. Co., 344 Or 232, 259-61, 179 P3d 645 (2008) (so explaining).
The Supreme Court has recognized three exceptions to the ratio guidepost. See Campbell, 538 US at 425 (listing exceptions); Gore, 517 US at 582 (same). Gore stated the only such exception relevant to this case as follows: “[L]ow awards of compensatory damages may properly support a higher ratio than high compensatory awards if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” 517 US at 582. The Court repeated that exception in Campbell, directly quoting the Gore phrasing: “[RJatios greater than those we have previously upheld may comport with due process where ‘a particularly egregious act *547has resulted in only a small amount of economic damages.’ ” 538 US at 425 (quoting Gore, 517 US at 582).
In this case, however, the majority truncates that exception: It drops the requirement of “particularly egregious misconduct” and expands the exception to reach all “small” compensatory damage awards. The majority’s support for that proposition is a single case: Exxon Shipping Co. v. Baker, 554 US 471, 128 S Ct 2605, 171 L Ed 2d 570 (2008). See 349 Or at 534 (so stating). Exxon Shipping does not support that conclusion, however.
Exxon Shipping’s discussion of the constitutional limits on punitive damages concerned a point of law that was not at issue in the case.14 And while the Court omitted to mention the “particularly egregious” requirement in the text of the opinion, it specifically quoted the “particularly egregious” requirement in a parenthetical. 554 US at 494.15 Yet the majority necessarily concludes that the Court intended to abolish the element. To put it bluntly, the notion that the Supreme Court has abolished the “particularly egregious” requirement is not a defensible reading of Exxon Shipping.
I understand the majority’s motivation, however. I believe that the majority is concerned about the consequences of having the ratio guidepost apply to ordinary small awards — and justifiably so. No matter what the tort is, if a jury awards only $1 in nominal compensatory damages, a single-digit ratio of punitive damages — $9—is far too low. In such cases, the award must be greater than the single-digit ratio approved in Gore and Campbell. We do need a solution to that quandary.
*548The majority’s solution is effectively to presume that the Supreme Court did not mean what it said. The majority does not recognize, however, that doing so creates as many problems as it solves. It is not only bad law, it is bad policy. Let me explain. The majority, having concluded that the ratio guidepost does not apply to any “small” compensatory damages award, then suggests that the upper end of “small” awards is in the $12,000 - $25,000 range. 349 Or at 537-38. From that idea, the majority leaps to the conclusion that $8,000 in compensatory damages permits punitive damages of at least $175,000.
But consider what would happen if this plaintiff had suffered $12,000 in damages, not just $8,000. At that point (or thereabouts), the ratio guidepost would kick in, and accordingly the maximum ratio (subject to adjustment) generally would be 4:1. See Goddard, 344 Or at 260 (for cases of purely economic injury). Therefore, the maximum constitutionally permissible punishment would be limited to only $48,000 (subject to some adjustment up or down). Similarly, if this plaintiff had been injured $25,000, he would have been entitled to punitive damages of only $100,000.
That point is worth emphasizing. If this defendant had done more than triple the amount of damages in this case ($25,000), the maximum constitutionally permissible punitive damages award would be reduced by over 40% from what the majority approves here. If this defendant had done quadruple the amount of damages ($32,000), the maximum permissible punitive damages award still would be reduced by over 25% (to $128,000).
How could an equitable rule require a plaintiff who suffers more harm to receive less punitive damages? How could a fair rule permit a defendant who inflicts more harm to be punished less? The majority’s rule will effectively reward defendants for inflicting more harm on plaintiffs, while punishing those plaintiffs unfortunate enough to have suffered extra harm. However well intentioned, it is a mistake for the majority to institutionalize that result. “[T]he penalty scheme [wrongdoers] face ought to threaten them with a fair probability of suffering in like degree when they wreak like damage.” Exxon Shipping, 554 US at 502.
*549The majority’s approach creates another problem. In its effort to avoid punitive damages awards that are too small, the majority instead allows punitive damages awards that are too large. There are plenty of small torts that deserve punitive damage awards, but not $175,000 or more. The defendant who publicly spits in a plaintiffs face should be punished — but $200,000 worth? Yet the majority’s deferential analysis of small compensatory damage awards would impose no real restraint on such an outcome.
For the lower half of damage awards, then, the majority creates a topsy turvy world, in which the less harm you do, the more you can be punished. Measured by the actual damages that the defendants cause, the least dangerous defendants can be punished with constitutionally inappropriate punitive damages, while the more dangerous defendants are protected by the ratio guidepost.16
*550I would propose a different solution. The key is to recognize that some punitive damages awards are small enough that they do not implicate substantive due process concerns, even if the misconduct essentially resulted in no harm to a party at all. An entire genre of court cases regularly involves financial penalties that are intended to punish and deter misconduct. Those financial penalties are familiar to all of us: They are civil penalties and criminal fines. When those civil penalties and criminal fines are in “ordinary” amounts, their constitutionality is neither disputed nor disputable.
So, too, then, with awards of punitive damages. Such awards, when comparable in amount to civil penalties or criminal fines already prescribed by the legislature, do not raise any concerns about being “grossly excessive,” which is what the Gore guideposts are intended to protect against. See Campbell, 538 US at 416-17 (“The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” (Citations omitted.)); Gore, 517 US at 562 (to the same effect).
For that reason, it would be easy for the courts to determine whether the award was, in effect, de minimis non curat lex.17 Awards below the de minimis amount would not be subject to the Gore guideposts and would not require any sort of substantive Gore/Campbell judicial review at all. And, when the court identified an unconstitutional punitive damages award, the appropriate remittitur would never drop below the de minimis amount.18
*551It is worth pointing out, too, that, under my analysis, the exception to the ratio requirement stated by the Supreme Court — “a particularly egregious act [that] has resulted in only a small amount of economic damages” — remains important. There will be cases in which the de minimis award would fail to recognize adequately how reprehensible the misconduct was and how near plaintiff came to suffering extraordinary damages. The example offered by the majority perfectly illustrates how the exception applies: A defendant who fires a gun wildly into a crowd but only does $10 worth of damages to a pair of glasses should receive a more severe punishment than the de minimis award. 349 Or at 533.
Based on my review of existing legislation, I would be inclined to conclude that the de minimis amount should be $50,000. That amount represents the maximum criminal fine that the legislature permits to be imposed against a corporation for committing a felony. ORS 161.655(l)(a). That choice represents a balance of factors. On the one hand, criminal fines may be imposed only after a trial with procedural safeguards that are not available in civil actions; that fact would counsel for a lower de minimis amount. See Campbell, 538 US at 428 (“Great care must be taken to avoid use of the civil process to assess criminal penalties that can be imposed only after the heightened protections of a criminal trial have been observed, including, of course, its higher standards of proof.”). On the other hand, corporations can only be fined— they face no risk of imprisonment — and the fine for corporations is well below that which may be imposed on individuals. See ORS 161.625(1) (fines for individuals can range from $125,000 for a Class C felony to $500,000 for murder or aggravated murder). Furthermore, in many cases corporations represent the more dangerous civil defendants. In this particular case, defendant is a corporation. The choice of $50,000 thus seems reasonable and appropriate.
In this case, the jury awarded $175,000. That is well above the de minimis amount, so we should apply the Gore guideposts. As applied to this case, I agree with the Court of Appeals that defendant’s misconduct was not particularly reprehensible. See Hamlin v. Hampton Lumber Mills, Inc., 222 Or App 230, 239-41, 193 P3d 46 (2008), on recons, 227 Or App 165, 205 P3d 70 (2009) (explaining that only two of the *552five reprehensibility subfactors exist here).19 Because this case involved only economic harm — it is not an action for physical injury, but for unlawful refusal to reinstate the plaintiff to his job — I would conclude that the appropriate ratio for punitive damages under Gore should be 3:1, or roughly $24,000. See Goddard, 344 Or at 260 (“as a very general rule of thumb,” punitive damages awards for solely economic injury should not significantly exceed 4:1). That amount, however, is less than the de minimis amount of $50,000. Accordingly, I would hold that the punitive damages award should be subject to a remittitur of punitive damages to $50,000.
I add one final note: a plea to the Supreme Court of the United States. For years this court generally, and I personally, have struggled to apply Gore and Campbell faithfully to the cases before us. This case represents but one of the many problems that have cropped up in the seven years since the Court decided Campbell. The courts around are in need of — indeed, I will assert that we deserve — further guidance that only the Court can provide. Whether the Court agrees with my analysis, or the majority, or something in between, does not matter to me. But it would be a responsible act of comity for the Court to say something clear to help in future cases.
I respectfully dissent.
Balmer, J., joins in this dissenting opinion.See Exxon Shipping, 554 US at 501-02 (“Today’s enquiry differs from due process review because the case arises under federal maritime jurisdiction, and we are reviewing a jury award for conformity with maritime law, rather than the outer limit allowed by due process * *
The Court stated:
“Regardless of culpability, however, heavier punitive awards have been thought to be justifiable * * * when the value of injury and the corresponding compensatory award are small (providing low incentives to sue), see, e.g., [Gore, 517 US at 582] (‘[L]ow awards of compensatory damages may properly support a higher ratio * f * if, for example, a particularly egregious act has resulted in only a small amount of economic damages’) * *
554 US at 494 (second alteration and second ellipsis in original; emphasis added).
The majority, disagreeing with my analysis, offers three responses. All of them miss the point.
The majority first asserts that there is no “hard and fast numerical line” defining “small” compensatory damages awards. 349 Or at 538 n 11. The absence of a “hard and fast” rule does not affect the validity of my contention. If this jury had awarded this plaintiff more compensatory damages — which plaintiff asked the jury to do — then this compensatory damages award would not have been “small,” and this punitive damages award would have been unconstitutional.
Second, the majority (apparently assuming for purposes of argument that $12,000 does mark the upper limit of “small” compensatory damages awards) asserts that if an $11,000 award would justify $175,000 in punitive damages, then a $12,000 award would justify a comparable award. 349 Or at 538 n 11. The problem is that the majority has just denied what its opinion holds. If a $12,000 compensatory damages award is not “small,” then the “small compensatory damages” exception to the ratio guidepost does not apply, by definition. The majority thus cannot appeal to the “small compensatory damages” exception to justify a punitive damages award of $175,000 on compensatory damages of $12,000. Such an award is sustainable, if at all, only if some other exception applies.
Third, the majority seemingly asserts that there is no problem because, when the compensatory damages are large enough, even those punitive damages awards subject to the ratio guidepost will exceed the award here. “[I]f a defendant were to cause harm that resulted in an award of $50,000 in compensatory damages, an award of four times that sum would result in punitive damages of $200,000.” 349 Or at 539 n 11. That statement is true, but beside the point. The majority’s exception for “small” compensatory damages awards (below $12,000) necessarily means that a whole range of defendants who cause more than $12,000 harm will be punished less. Indeed, at a 4:1 ratio for economic harm, a defendant would have to inflict nearly $44,000 in damages to justify the same $175,000 punitive damages award that the majority approves here for $8,000.
“The law does not notice or concern itself with trifling matters.” Black’s Law Dictionary 1826 (9th ed 2009).
The majority effectively asserts that I am also recognizing an additional “exception” to the ratio guidepost. 349 Or at 535 n 8. That misunderstands the breadth of my argument. If it were an exception, it would apply only to the ratio guidepost, and so courts still would have to address the other two Gore guideposts (reprehensihility and comparable civil penalties). As I just noted, however, I would conclude that awards below the de minimis limit are not subject to any substantive due process review at all.
The majority’s suggestion that my proposal would violate Supreme Court precedent by setting “rigid benchmarks beyond which a punitive damages award becomes unconstitutional,” 349 Or at 535 n 8 (internal quotation marks and citation omitted), also misreads my argument. The de minimis award amount is not a ceiling beyond which punitive damages may not go. It is a safe harbor against substantive due process challenges to any punitive damages award up to $50,000.
I am not persuaded by the majority’s assertion that the violation of the statute at issue here represents an additional form of reprehensibility beyond the factors identified by the Supreme Court in Gore and Campbell. 349 Or at 540-41.