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In a series of cases decided over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently clear and flexible that they required little change in the system and probably generated a helpful level of debate and uniformity as to some basic requirements for awards. However, in BMW of North America, Inc. v. Gore, the Court adopted an approach characterized by a lack of clarity and consistency, an inadequate basis in theory and policy, and ad hoc decisions. The harmful results of this approach are evident in the Court's recent decision, Philip Morris USA v. Williams, which requires states to instruct juries in terms of a distinction that the four dissenting judges refer to as elusive, unclear, and confusing. Even if one accepts the view that there should be, at some point, substantive due process limits on the amount of punitive damages, decisions like Williams are likely to make the process less fair and reliable. Therefore, the Court should abandon its current approach, which is both unnecessary and likely to do more harm than good, and should, instead, be more deferential to the state courts and legislatures, and be more concerned with developing a coherent framework.

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