(concurring). "Punitive damages have long been a part of traditional state tort law." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984), quoted in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991).1 In Wilkes v. Wood, Lofft 1, 98 Eng Rep 489 (CP 1763), the Lord Chief Justice validated exemplary damages as compensation, punishment and deterrence. (Cited in Haslip, 499 U.S. at 15). The history of the excessive fines clause of the Eighth Amendment shows that the clause is applicable to punitive damages. Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 286-87 (1989) (O'Connor, J., concurring in part and dissenting in part).
Under the Saxon legal system in pre-Norman England, "the victim of a wrong would, rather than seek vengeance through retaliation or 'blood feud,' accept financial compensation for the injury from the wrongdoer." Id. at 287. At some point after the Norman Conquest in 1066, this method of settling disputes gave way to a system in which individuals who had engaged in conduct offensive to the Crown placed themselves "in the King's mercy" so as not to have to satisfy all the monetary claims against them. Id. In order to receive clemency, these individuals were required to pay an "amercement" to the Crown, its representative, or a *619feudal lord. Id. at 287-88 (citing Tumey v. Ohio, 273 U.S. 510, 525 (1927)).
Fines and amercements had very similar functions. Id. at 289. Fines originated in the Thirteenth Century as voluntary sums paid to the Crown to avoid an indefinite prison sentence or to avoid royal displeasure. Id. In practice, it became difficult to distinguish between amercements and fines. However, by the Seventeenth Century, fines had replaced amercements as the preferred penal sanction. Id. at 290. The word "fine" took on its modern meaning, while the word "amercement" dropped out of ordinary usage. Id. Shakespeare did not distinguish between fines and amercements in the plays he wrote in the late Sixteenth Century. Id. In Romeo and Juliet, published in 1597, Prince Escalus uses the words "amerce" and "fine" interchangeably. In this manner, he warned the Montagues and the Capulets not to shed blood on the streets of Verona:
I have an interest in your hate's proceeding, My blood for your rude brawls doth lie a-bleeding; But I'll amerce you with so strong a fine, That you shall all repent the loss of mine.
Id. (quoting Act III, scene 1).
A fascinating account of the development of punitive damages appears in Justice O'Connor's separate opinion in Browning-Ferris. See 492 U.S. at 286-95. The Browning-Ferris majority questioned Justice O'Connor's conclusion that the word "fine," as used in the late Eighteenth Century encompassed private civil damages. 492 U.S. at 265 & n.7. Justice Blackmun doubted whether Shakespeare appreciated the difference between a "fine" and an "amercement." He observed:
*620Though Shakespeare, of course, Knew the Law of his time, He was foremost a poet, In search of a rhyme.
Id. at 265 n.7.
Justice Blackmun concluded that the "pedigree" of the Eighth Amendment convincéd a majority of the Court that the excessive fines clause did not apply to civil damages but was intended to limit only those fines directly imposed by and payable to the government. 492 U.S. at 268.
The majority concluded that the excessive fines clause did not limit the ability of a civil jury to award punitive damages. Id. at 271. Justice Blackmun concluded that the practice of awarding damages far in excess of actual compensation for quantifiable injuries was well recognized at the time the framers produced the Eighth Amendment. Id. at 274.
The petitioners also asked the Browning-Ferris Court to determine whether the punitive damages award therein was excessive under the Due Process Clause of the Fourteenth Amendment. Id. at 276. However, the Court deferred that inquiry to another day because petitioners had failed to raise the argument before either the district court or the court of appeals and made no specific mention of it in their petition for certiorari. Id. at 276-77.
In Haslip, however, the Court made that inquiry. The Court approved the traditional common-law approach for assessing punitive awards. 499 U.S. at 15-17. Under that approach, the amount of the punitive award is initially determined by a jury instructed to consider the gravity of the wrong and the need to deter similar wrongful conduct. Id. at 15. The jury's determination is then reviewed by trial and appellate courts to *621ensure that it is reasonable. Id. The Court declined to hold that this common-law method for assessing punitive damages was so inherently unfair as to deny due process and violate the Fourteenth Amendment: "If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it." Sun Oil Co. v. Wortman, 486 U.S. 717, 730 (1988) (quoting Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922)), quoted in Haslip, 499 U.S. at 17.
The Court said, however, that accepting the common-law manner of computing punitive damages did not require the conclusion that the imposition of punitive damages is never unconstitutional. 499 U.S. at 18. The Court noted again its concern about punitive damages "run wild." Id.
I set forth the foregoing history of punitive damages solely to show that our review of an award of punitive damages is not deferential; we are part of the "due process" by which an award of punitive damages is determined. The jury makes its award. The trial court reviews the award. It is then reviewed by our court, and, possibly, our supreme court. See TXO Production Corp. v. Alliance Resources Corp., 509 U.S. —, 113 S. Ct. 2711, 2719-20 (1993). The United States Supreme Court has refused to "enshrine" a comparative approach whereby other awards are tested against the award made in a particular case. 509 U.S. at —, 113 S. Ct. at 2720.
The Court has confirmed that a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable cannot be drawn in every case. Id. (citing Haslip, 499 U.S. at 18). However, a general concern for reasonableness properly enters into the constitutional calculus.
*622Some courts have held that punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually occurred. "If the defendant's actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be much greater." TXO, 509 U.S. at —, 113 S. Ct. at 2721 (quoting Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897, 909 (W. Va. 1991)).
In TXO, a plurality of the Court adopted the principle that a mere "dramatic disparity" between the actual damages and the punitive award is not controlling. 509 U.S. at —, 113 S. Ct. at 2722. In TXO, plaintiffs actual damages were $19,000 and the jury awarded $10 million punitive damages. A plurality of the Court affirmed the award.
In a "spotted cow" case, Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655 (4th Cir.), cert. denied, 114 S. Ct. 443 (1993), the jury awarded Trandes $17,400 in compensatory damages and $750,000 in punitive damages. Id. at 657. Trandes alleged that the defendant improperly acquired and used the "Tunnel System," a computer program written by Trandes's president to perform survey calculations for the construction of subway tunnels. Id. The Fourth Circuit Court of Appeals affirmed the jury's award but remanded for remittitur or retrial of punitive damages in accordance with a Maryland statute placing a cap on punitive damages. Maryland limits punitive damages to twice compensatory damages. Id. at 658.
The Fourth Circuit Court of Appeals concluded that "the evidence is clear that [defendant's] actions were both willful and egregious." Id. at 666. The actions which the jury found to be willful and egregious *623do not differ greatly from appellant's actions in this case. Numerous employees of the defendant knew or had reason to know that the defendant was not authorized to use the Tunnel System software, but yet the defendant modified the program to misrepresent that it was an authorized user. Id.
TXO does not provide a great deal of guidance other than fundamental fairness for determining punitive damages. The Haslip Court approved a jury instruction which instructed the jury that punitive damages are to punish the defendant and deter it and others from similar conduct in the future. See Dunn v. Hovic, 1 F.3d 1371, 1380 (3d Cir.), modified in part on other grounds, 13 F.3d 58 (3d Cir.), cert. denied, 114 S. Ct. 650 (1993). The district court also told the jury that punitive damages are allowed only for wanton and reckless behavior "[where] defendant's conduct was outrageous because done with an evil motive or done with reckless indifference to the rights of others." Id. In Haslip, the Court noted that under the applicable Alabama precedent, the factors a trial court considers in scrutinizing a jury verdict for excessiveness of damages are "the 'culpability of the defendant's conduct,' the 'desirability of discouraging others from similar conduct,' the 'impact upon the parties,' and 'other factors, such as the impact on innocent third parties.'" Dunn, 1 F.3d at 1381 (quoting Haslip, 499 U.S. at 16 (quoting Hammond v. City of Gadsden, 493 So. 2d 1374, 1379 (Ala. 1986))).
Wisconsin courts review punitive damage awards much as do the Alabama courts. Courts are particularly likely to approve punitive damage awards where defendant's conduct entails health hazards. See Dunn, 1 F.3d at 1383. Courts also consider the ability of the defendant to pay and the extent to which the defendant *624has profited from its egregious conduct. See id. at 1383-84.
In this case, the plaintiff did not present evidence as to HABCO's net worth. I agree that HABCO's actions were egregious. However, an award of $1,750,000 is unreasonable and will not survive a due process challenge given that HABCO's conduct did not affect the life or health of any individual and MCS can be compensated for its actual damages. An award of $1,750,000 for software theft shocks my conscience. I am satisfied that the award of $650,000 which we make is a sufficient deterrent to HABCO and others who might be similarly tempted to steal and convert computer software.
For these reasons I concur.
I concur solely to make clear that our review of a jury's award of punitive damages is not deferential. Appellate court review is part of the process due a litigant against whom punitive damages have been awarded.