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TIME TO GIVE STATES THEIR DUE To the editor: Evan P. Schultz [" Tilting the Scales of Justice," April 28, 2003, Page 58] is correct that, in State Farm Mutual Automobile Insurance Co. v. Campbell(April 7, 2003), the Supreme Court did not consider the effect that its decision to overturn a punitive damages award might have on the states’ ability to use tort law to deter and punish egregious conduct. “Single-digit multipliers,” the Court said, “are more likely to comport with due process,” which means, as Schultz observes, that a punitive damages award must be “almost always no more than nine times” the compensatory award. But why did the Court rule in this case at all? Schultz does not focus on the fact that the basis for the decision was the due process clause. (The Eighth Amendment’s prohibition on excessive fines does not apply to punitive damages awards, Browning-Ferris Industries v. Kelso Disposal Inc.,492 U.S. 257 (1989).) What sort of due process did the punitive damages award violate? Substantive due process, of course — the Lochnerkind, of which conservative justices should disapprove because it is not in the Constitution. In Lochner,the Court interfered with the states’ power to regulate business directly (with a maximum-hour law); in State Farm,the Court interfered with the states’ power to regulate business through its tort system. Further, the conservative justices who joined State Farmare the same justices who believe in deferring to states’ rights, at least when a state wishes to lock up a petty thief for 25 or 50 years. Henry Cohen Baltimore, Md.

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