SUPREME COURT OF THE UNITED STATES

No. 93-644

HONDA MOTOR CO., LTD., et al, PETITIONERS v. KARL L. OBERG

on writ of certiorari to the supreme court of oregon

[June 24, 1994]

Justice Scalia , concurring.

Before the 1910 Amendment to Article VII, §3 of the Oregon Constitution, Oregon courts had developed and were applying common law standards that limited the size of damage awards. See, e.g., Adcock v. Oregon R. Co., 45 Ore. 173, 179-182, 77 P. 78, 80 (1904) (approving trial court's decision to grant a remittitur because the jury's damage award was excessive); see also Van Lom v. Schneiderman, 187 Ore. 89, 96-98, 112-113, 210 P. 2d 461, 464, 471 (1949). The 1910 Amendment, by its terms, did not eliminate those substantive standards but altered the procedures of judicial review: "no fact tried by a jury shall be otherwise re examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict" (emphasis added). The Oregon courts appear to believe that a state law "reasonableness" limit upon the amount of punitive damages subsists, but cannot be enforced through the process of judicial review. In Van Lom, for example, the Oregon Supreme Court had no trouble concluding that the damage award was excessive, see 187 Ore., at 91-93, 210 P. 2d, at 462, but held that theAmendment had removed its "power to correct a miscarriage of justice by ordering a new trial," id., at 112-113, 210 P. 2d, at 471.

The Court's opinion establishes that the right of review eliminated by the Amendment was a procedure traditionally accorded at common law. The deprivation of property without observing (or providing a reasonable substitute for) an important traditional procedure for enforcing state prescribed limits upon such deprivation violates the Due Process Clause.