Gasperini v. Center For Humanities, Inc. (95-719), 517 U.S. 1102 (1996).
[ Stevens ]
[ Scalia ]
[ Ginsburg ]
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No. 95-719


on writ of certiorari to the united states court of appeals for the second circuit

[June 24, 1996]

Justice Scalia , with whom the Chief Justice and The Court also holds today that a state practice that relates to the division of duties between state judges and juries must be followed by federal courts in diversity cases. On this issue, too, our prior cases are directly to the contrary.

As I would reverse the judgment of the Court of Appeals, I respectfully dissent.

Because the Court and I disagree as to the character of the review that is before us, I recount briefly the nature of the New York practice rule at issue. Section 5501(c) of the N. Y. Civ. Prac. Law and Rules (CPLR) (McKinney 1995) directs New York intermediate appellate courts faced with a claim "that the award is excessive or inadequate and that a new trial should have been granted" to determine whether the jury's award "deviates materially from what would be reasonable compensation." In granting respondent a new trial under this standard, the Court of Appeals necessarily engaged in a two step process. As it has explained the application of §5501(c), that provision "requires the reviewing court to determine the range it regards as reasonable, and to determine whether the particular jury award deviates materially from that range." Consorti v. Armstrong World Industries, Inc., 72 F. 3d 1003, 1013 (1995) (amended). The first of these two steps--the determination as to "reasonable" damages--plainly requires the reviewing court to reexamine a factual matter tried by the jury: the appropriate measure of damages, on the evidence presented, under New York law. The second step--the determination as to the degree of difference between "reasonable" damages and the damages found by the jury (whether the latter "deviates materially" from the former)--establishes the degree of judicial tolerance for awards found not to be reasonable, whether at the trial level or by the appellate court. No part of this exercise is appropriate for a federal court of appeals, whether or not it is sitting in a diversity case.

Granting appellate courts authority to decide whether an award is "excessive or inadequate" in the manner of CPLR §5501(c) may reflect a sound understanding of the capacities of modern juries and trial judges. That is to say, the people of the State of New York may well be correct that such a rule contributes to a more just legal system. But the practice of federal appellate reexamination of facts found by a jury is precisely what the People of the several States considered not to be good legal policy in 1791. Indeed, so fearful were they of such a practice that they constitutionally prohibited it by means of the Seventh Amendment.

That Amendment was Congress's response to one of the principal objections to the proposed Constitution raised by the Anti Federalists during the ratification debates: its failure to ensure the right to trial by jury in civil actions in federal court. The desire for an explicit constitutional guarantee against reexamination of jury findings was explained by Justice Story, sitting as Circuit Justice in 1812, as having been specifically prompted by Article III's conferral of "appellate Jurisdiction, both as to Law and Fact" upon the Supreme Court. "[O]ne of the most powerful objections urged against [the Constitution]," he recounted, was that this authority "would enable that court, with or without a new jury, to re examine the whole facts, which had been settled by a previous jury." United States v. Wonson, 28 F. Cas. 745, 750 (No. 16,750) (CC Mass). [n.1]

The second clause of the Amendment responded to that concern by providing that "[i]n [s]uits at common law . . . no fact tried by a jury, shall be otherwise re examined in any Court of the United States, than according to the rules of the common law." U. S. Const., Amdt. 7. The Reexamination Clause put to rest "apprehensions" of "new trials by the appellate courts," Wonson, 28 F. Cas., at 750, by adopting, in broad fashion, "the rules of the common law" to govern federal court interference with jury determinations. [n.2] The content of that law was familiar and fixed. See, e.g., ibid. ("[T]he common law here alluded to is not the common law of any individual state, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence"); Dimick v. Schiedt, 293 U.S. 474, 487 (1935) (Seventh Amendment "in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791"). It quite plainly barred reviewing courts from entertaining claims that the jury's verdict was contrary to the evidence.

At common law, review of judgments was had only on writ of error, limited to questions of law. See, e.g., Wonson, supra, at 748; 3 W. Blackstone, Commentaries on the Laws of England 405 (1768) ("The writ of error only lies upon matter of law arising upon the face of the proceedings; so that no evidence is required to substantiate or support it"); 1 W. Holdsworth, History of English Law 213-214 (7th ed. 1956); cf. Ross v. Rittenhouse, 2 Dall. 160, 163 (Pa. 1792) (McKean, C. J.). That principle was expressly acknowledged by this Court as governing federal practice in Parsons v. Bedford, 3 Pet. 433 (1830) (Story, J.). There, the Court held that no error could be assigned to a district court's refusal to allow transcription of witness testimony "to serve as a statement of facts in case of appeal," notwithstanding the right to such transcription under state practices made applicable to federal courts by Congress. This was so, the Court explained, because "[t]he whole object" of the transcription was "to present the evidence here in order to establish the error of the verdict in matters of fact," id., at 445" a mode of review simply unavailable on writ of error, see id., at 446, 448. The Court concluded that Congress had not directed federal courts to follow state practices that would change "the effect or conclusiveness of the verdict of the jury upon the facts litigated at the trial," id., at 449, because it had "the most serious doubts whether [that] would not be unconstitutional" under the Seventh Amendment, id., at 448.

"This is a prohibition to the courts of the United States to re examine any facts tried by a jury in any other manner. The only modes known to the common law to re examine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings.

. . . . .

"[I]f the evidence were now before us, it would not be competent for this court to reverse the judgment for any error in the verdict of the jury at the trial . . . ." Id., at 447-449.

Nor was the common law proscription on reexamination limited to review of the correctness of the jury's determination of liability on the facts. No less than the existence of liability, the proper measure of damages "involves only a question of fact," St. Louis, I. M. & S. R. Co. v. Craft, 237 U.S. 648, 661 (1915), as does a "motio[n] for a new trial based on the ground that the damages . . . are excessive," Metropolitan R. Co. v. Moore, 121 U.S. 558, 574 (1887). As appeals from denial of such motions necessarily pose a factual question, courts of the United States are constitutionally forbidden to entertain them.

"No error of law appearing upon the record, this court cannot reverse the judgment because, upon examination of the evidence, we may be of the opinion that the jury should have returned a verdict for a less amount. If the jury acted upon a gross mistake of facts, or were governed by some improper influence or bias, the remedy therefore rested with the court below, under its general power to set aside the verdict. . . . Whether [the refusal to exercise that power] was erroneous or not, our power is restricted by the Constitution to the determination of the questions of law arising upon the record. Our authority does not extend to a re examination of facts which have been tried to the jury under instructions correctly defining the legal rights of parties. Parsons v. Bedford, [supra] . . . ." Railroad Co. v. Fraloff, 100 U.S. 24, 31-32 (1879).

This view was for long years not only unquestioned in our cases, but repeatedly affirmed. [n.3]

Respondent's principal response to these cases, which is endorsed by Justice Stevens, see ante, at 5-7, is that our forebears were simply wrong about the English common law. The rules of the common law practice incorporated in the Seventh Amendment, it is claimed, did not prevent judges sitting in an appellate capacity from granting a new trial on the ground that an award was contrary to the weight of the evidence. This claim simply does not withstand examination of the actual practices of the courts at common law. The weight of the historical record strongly supports the view of the common law taken in our early cases.

At common law, all major civil actions were initiated before panels of judges sitting at the courts of Westminster. Trial was not always held at the bar of the court, however. The inconvenience of having jurors and witnesses travel to Westminster had given rise to the practice of allowing trials to be held in the countryside, before a single itinerant judge. This nisi prius trial, as it was called, was limited to the jury's deciding a matter of fact in dispute; once that was accomplished, the verdict was entered on the record which--along with any exceptions to the instructions or rulings of the nisi prius judge--was then returned to the en banc court at Westminster. See generally 1 Holdsworth, History of English Law, at 223-224, 278-282; G. Radcliffe & G. Cross, The English Legal System 90-91, 183-186 (3d ed. 1954). Requests for new trials were made not to the nisi prius judge, but to the en banc court, prior to further proceedings and entry of judgment. See 1 Holdsworth, supra, at 282; Riddell, New Trial at the Common Law, 26 Yale L. J. 49, 53, 57 (1916). Such motions were altogether separate from appeal on writ of error, which followed the entry of judgment. 1 Holdsworth, supra, at 213-214; Radcliffe & Cross, supra, at 210-212. [n.4]

Nonetheless, respondent argues, the role of the en banc court at Westminster was essentially that of an appellate body, reviewing the proceedings below; and those appellate judges were capable of examining the evidence, and of granting a new trial when, in their view, the verdict was contrary to the weight of the evidence. See Blume, Review of Facts in Jury Cases-- The Seventh Amendment, 20 J. Am. Jud. Soc. 130, 131 (1936); Riddell, supra, at 55-57, 60. There are two difficulties with this argument. The first is the characterization of the court at Westminster as an appellate body. The court's role with respect to the initiation of the action, the entertaining of motions for new trial, and the entry of judgment was the same in all cases--whether the cause was tried at the bar or at nisi prius. To regard its actions in deciding a motion for a new trial as "appellate" in the latter instance supposes a functional distinction where none existed. The second difficulty is that when the trial had been held at nisi prius, the judges of the en banc court apparently would order a new trial only if the nisi prius judge certified that he was dissatisfied with the verdict. To be sure, there are many cases where no mention is made of the judge's certificate, but there are many indications that it was a required predicate to setting aside a verdict rendered at nisi prius, and respondent has been unable to identify a single case where a new trial was granted in the absence of such certification. In short, it would seem that a new trial could not be had except upon the approval of the judge who presided over the trial and heard the evidence. [n.5]

I am persuaded that our prior cases were correct that, at common law, "reexamination" of the facts found by a jury could be undertaken only by the trial court, and that appellate review was restricted to writ of error which could challenge the judgment only upon matters of law. Even if there were some doubt on the point, we should be hesitant to advance our view of the common law over that of our forbears, who were far better acquainted with the subject than we are. But in any event, the question of how to apply the "rules of the common law" to federal appellate consideration of motions for new trials is one that has already been clearly and categorically answered, by our precedents. As we said in Dimick v. Schiedt, 293 U.S. 474 (1935), in discussing the status of remittitur under "the rules of the common law," a doctrine that "has been accepted as the law for more than a hundred years and uniformly applied in the federal courts during that time" and "finds some support in the practice of the English courts prior to the adoption of the Constitution" will not lightly "be reconsidered or disturbed," id., at 484-485. The time to question whether orders on motions for a new trial were in fact reviewable at common law has long since passed. Cases of this Court reaching back into the early 19th century establish that the Constitution forbids federal appellate courts to "reexamine" a fact found by the jury at trial; and that this prohibition encompasses review of a district court's refusal to set aside a verdict as contrary to the weight of the evidence.

The Court, as is its wont of late, all but ignores the relevant history. It acknowledges that federal appellate review of district court refusals to set aside jury awards as against the weight of the evidence was "once deemed inconsonant with the Seventh Amendment's re examination clause," ante, at 18, but gives no indication of why ever we held that view; and its citation of only one of our cases subscribing to that proposition fails to convey how long and how clearly it was a fixture of federal practice, see ibid. (citing only Lincoln v. Power, 151 U.S. 436 (1894)). That our earlier cases are so poorly recounted is not surprising, however, given the scant analysis devoted to the conclusion that "appellate review for abuse of discretion is reconcilable with the Seventh Amendment," ante, at 19.

No precedent of this Court affirmatively supports that proposition. The cases upon which the Court relies neither affirmed nor rejected the practice of appellate weight of the evidence review that has been adopted by the courts of appeals--a development that, in light of our past cases, amounts to studied waywardness by the intermediate appellate bench. Our unaccountable reluctance, in Grunenthal v. Long Island R. Co., 393 U.S. 156, 158 (1968), and Neese v. Southern R. Co., 350 U.S. 77 (1955), to stand by our precedents, and the undeniable illogic of our disposition of those two cases--approving ourselves a district court denial of a new trial motion, so as not to have to confront the lawfulness of reversal by the court of appeals--is authority of only the weakest and most negative sort. Nor can any weight be assigned to our statement in Browning Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989), seemingly approving appellate abuse of discretion review of denials of new trials where punitive damages are claimed to be excessive. Browning Ferris, like Grunenthal and Neese, explicitly avoided the question that is before us today, see 492 U. S., at 279, n. 25. Even more significantly, Browning Ferris involved review of a jury's punitive damages award. Unlike the measure of actual damages suffered, which presents a question of historical or predictive fact, see, e.g., Craft, 237 U. S., at 661, the level of punitive damages is not really a "fact" "tried" by the jury. In none of our cases holding that the Reexamination Clause prevents federal appellate review of claims of excessive damages does it appear that the damages had a truly "punitive" component.

In any event, it is not this Court's statements that the Court puts forward as the basis for dispensing with our prior cases. Rather, it is the Circuit Courts of Appeals' unanimous "agree[ment]" that they may review trial court refusals to set aside jury awards claimed to be against the weight of the evidence. Ante, at 19. This current unanimity is deemed controlling, notwithstanding the "relatively late" origin of the practice, ante, at 18, and without any inquiry into the reasoning set forth in those Court of Appeals decisions. [n.6] The Court contents itself with citations of two federal appellate cases and the assurances of two leading treatises that the view (however meager its intellectual provenance might be) is universally held. See ante, at 19-20. To its credit, one of those treatises describes the "dramatic change in doctrine" represented by appellate abuse of discretion review of denials of new trial orders generally as having been "accomplished by a blizzard of dicta" that, through repetition alone, has "given legitimacy to a doctrine of doubtful constitutionality." 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2819, pp. 200, 204 (2d ed. 1995). [n.7]

The Court's only suggestion as to what rationale might underlie approval of abuse of discretion review is to be found in a quotation from Dagnello v. Long Island R. Co., 289 F. 2d 797 (CA2 1961), to the effect that review of denial of a new trial motion, if conducted under a sufficiently deferential standard, poses only " `a question of law.' " Ante, at 19 (quoting Dagnello, supra, at 806). But that is not the test that the Seventh Amendment sets forth. Whether or not it is possible to characterize an appeal of a denial of new trial as raising a "legal question," it is not possible to review such a claim without engaging in a "reexamin[ation]" of the "facts tried by the jury" in a manner "otherwise" than allowed at common law. Determining whether a particular award is excessive requires that one first determine the nature and extent of the harm--which undeniably requires reviewing the facts of the case. That the court's review also entails application of a legal standard (whether "shocks the conscience," "deviates materially," or some other) makes no difference, for what is necessarily also required is reexamination of facts found by the jury.

In the last analysis, the Court frankly abandons any pretense at faithfulness to the common law, suggesting that "the meaning" of the Reexamination Clause was not "fixed at 1791," ante, at 20, n. 20, contrary to the view that all our prior discussions of the Reexamination Clause have adopted, see supra, at 4-7. The Court believes we can ignore the very explicit command that "no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law" because, after all, we have not insisted that juries be all male, or consist of 12 jurors, as they were at common law. Ante, at 20, n. 20. This is a desperate analogy, since there is of course no comparison between the specificity of the command of the Reexamination Clause and the specificity of the command that there be a "jury." The footnote abandonment of our traditional view of the Reexamination Clause is a major step indeed. [n.8]

The Court's holding that federal courts of appeals may review district court denials of motions for new trials for error of fact is not the only novel aspect of today's decision. The Court also directs that the case be remanded to the District Court, so that it may "test the jury's verdict against CPLR §5501(c)'s `deviates materially' standard," ante, at 23. This disposition contradicts the principle that "[t]he proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is . . . a matter of federal law." Donovan v. Penn Shipping Co., 429 U.S. 648, 649 (1977) (per curiam).

The Court acknowledges that state procedural rules cannot, as a general matter, be permitted to interfere with the allocation of functions in the federal court system, see ante, at 21. Indeed, it is at least partly for this reason that the Court rejects direct application of §5501(c) at the appellate level as inconsistent with an " `essential characteristic' " of the federal court system-- by which the Court presumably means abuse of discretion review of denials of motions for new trials. See ante, at 15, 21-22. But the scope of the Court's concern is oddly circumscribed. The "essential characteristic" of the federal jury, and, more specifically, the role of the federal trial court in reviewing jury judgments, apparently counts for little. The Court approves the "accommodat[ion]" achieved by having district courts review jury verdicts under the "deviates materially" standard, because it regards that as a means of giving effect to the State's purposes "without disrupting the federal system," ante, at 21. But changing the standard by which trial judges review jury verdicts does disrupt the federal system, and is plainly inconsistent with "the strong federal policy against allowing state rules to disrupt the judge jury relationship in federal court." Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 538 (1958). [n.9] The Court's opinion does not even acknowledge, let alone address, this dislocation.

We discussed precisely the point at issue here in Browning Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), and gave an answer altogether contrary to the one provided today. Browning Ferris rejected a request to fashion a federal common law rule limiting the size of punitive damages awards in federal courts, reaffirming the principle of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), that "[i]n a diversity action, or in any other lawsuit where state law provides the basis of decision, the propriety of an award of punitive damages . . . and the factors the jury may consider in determining their amount, are questions of state law." 492 U. S., at 278. But the opinion expressly stated that "[f]ederal law . . . will control on those issues involving the proper review of the jury award by a federal district court and court of appeals." Id., at 278-279. "In reviewing an award of punitive damages," it said, "the role of the district court is to determine whether the jury's verdict is within the confines of state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered." Id., at 279. The same distinction necessarily applies where the judgment under review is for compensatory damages: State substantive law controls what injuries are compensable and in what amount; but federal standards determine whether the award exceeds what is lawful to such degree that it may be set aside by order for new trial or remittitur. [n.10]

The Court does not disavow those statements in Browning Ferris (indeed, it does not even discuss them), but it presumably overrules them, at least where the state rule that governs "whether a new trial or remittitur should be ordered" is characterized as "substantive" in nature. That, at any rate, is the reason the Court asserts for giving §5501(c) dispositive effect. The objective of that provision, the Court states, "is manifestly substantive," ante, at 13, since it operates to "contro[l] how much a plaintiff can be awarded" by "tightening the range of tolerable awards," ante, at 9. Although "less readily classified" as substantive than "a statutory cap on damages," it nonetheless "was designed to provide an analogous control," ante, at 12, by making a new trial mandatory when the award "deviat[es] materially" from what is reasonable, see ante, at 12-13.

I do not see how this can be so. It seems to me quite wrong to regard this provision as a "substantive" rule for Erie purposes. The "analog[y]" to "a statutory cap on damages," ante, at 12, fails utterly. There is an absolutely fundamental distinction between a rule of law such as that, which would ordinarily be imposed upon the jury in the trial court's instructions, and a rule of review, which simply determines how closely the jury verdict will be scrutinized for compliance with the instructions. A tighter standard for reviewing jury determinations can no more plausibly be called a "substantive" disposition than can a tighter appellate standard for reviewing trial court determinations. The one, like the other, provides additional assurance that the law has been complied with; but the other, like the one, leaves the law unchanged.

The Court commits the classic Erie mistake of regarding whatever changes the outcome as substantive, see ante, at 12-14. That is not the only factor to be considered. See Byrd, 356 U. S., at 537 ("[W]ere `outcome' the only consideration, a strong case might appear for saying that the federal court should follow the state practice. But there are affirmative countervailing considerations at work here"). Outcome determination "was never intended to serve as a talisman," Hanna v. Plumer, 380 U.S. 460, 466-467 (1965), and does not have the power to convert the most classic elements of the process of assuring that the law is observed into the substantive law itself. The right to have a jury make the findings of fact, for example, is generally thought to favor plaintiffs, and that advantage is often thought significant enough to be the basis for forum selection. But no one would argue that Erie confers a right to a jury in federal court wherever state courts would provide it; or that, were it not for the Seventh Amendment, Erie would require federal courts to dispense with the jury whenever state courts do so.

In any event, the Court exaggerates the difference that the state standard will make. It concludes that different outcomes are likely to ensue depending on whether the law being applied is the state "deviates materially" standard of §5501(c) or the "shocks the conscience" standard. See ante, at 12-14. Of course it is not the federal appellate standard but the federal district court standard for granting new trials that must be compared with the New York standard to determine whether substantially different results will obtain--and it is far from clear that the district court standard ought to be "shocks the conscience." [n.11] Indeed, it is not even clear (as the Court asserts) that "shocks the conscience" is the standard (erroneous or not) actually applied by the district courts of the Second Circuit. The Second Circuit's test for reversing a grant of a new trial for an excessive verdict is whether the award was "clearly within the maximum limit of a reasonable range," Ismail v. Cohen, 899 F. 2d 183, 186 (CA2 1990) (internal quotation marks omitted), so any district court that uses that standard will be affirmed. And while many district court decisions express the "shocks the conscience" criterion, see, e.g., Koerner v. Club Mediterranee, S. A., 833 F. Supp. 327, 333 (SDNY 1993), some have used a standard of "indisputably egregious," Banff v. Express, Inc., 921 F. Supp. 1065, 1069 (SDNY 1995), or have adopted the inverse of the Second Circuit's test for reversing a grant of new trial, namely, "clearly outside the maximum limit of a reasonable range," Paper Corp. v. Schoeller Technical Papers, Inc., 807 F. Supp. 337, 350-351 (SDNY 1992). Moreover, some decisions that say "shocks the conscience" in fact apply a rule much less stringent. One case, for example, says that any award that would not be sustained under the New York "deviates materially" rule "shocks the conscience." See In re Joint Eastern & S. Dist. Asbestos Litigation, 798 F. Supp. 925, 937 (E&SDNY 1992), rev'd on other grounds, 995 F. 2d 343, 346 (CA2 1993). In sum, it is at least highly questionable whether the consistent outcome differential claimed by the Court even exists. What seems to me far more likely to produce forum shopping is the consistent difference between the state and federal appellate standards, which the Court leaves untouched. Under the Court's disposition, the Second Circuit reviews only for abuse of discretion, whereas New York's appellate courts engage in a de novo review for material deviation, giving the defendant a double shot at getting the damages award set aside. The only result that would produce the conformity the Court erroneously believes Erie requires is the one adopted by the Second Circuit and rejected by the Court: de novo federal appellate review under the §5501(c) standard.

To say that application of §5501(c) in place of the federal standard will not consistently produce disparate results is not to suggest that the decision the Court has made today is not a momentous one. The principle that the state standard governs is of great importance, since it bears the potential to destroy the uniformity of federal practice and the integrity of the federal court system. Under the Court's view, a state rule that directed courts "to determine that an award is excessive or inadequate if it deviates in any degree from the proper measure of compensation" would have to be applied in federal courts, effectively requiring federal judges to determine the amount of damages de novo, and effectively taking the matter away from the jury entirely. Cf. Byrd, 356 U. S., at 537-538. Or consider a state rule that allowed the defendant a second trial on damages, with judgment ultimately in the amount of the lesser of two jury awards. Cf. United States v. Wonson, 28 F. Cas., at 747-748 (describing Massachusetts practice by which a second jury trial could be had on appeal). Under the reasoning of the Court's opinion, even such a rule as that would have to be applied in the federal courts.

The foregoing describes why I think the Court's Erie analysis is flawed. But in my view, one does not even reach the Erie question in this case. The standard to be applied by a district court in ruling on a motion for a new trial is set forth in Rule 59 of the Federal Rules of Civil Procedure, which provides that "[a] new trial may be granted . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States" (emphasis added). That is undeniably a federal standard. [n.12] Federal district courts in the Second Circuit have interpreted that standard to permit the granting of new trials where " `it is quite clear that the jury has reached a seriously erroneous result' " and letting the verdict stand would result in a " `miscarriage of justice.' " Koerner v. Club Mediterranee, S. A., 833 F. Supp. 327 (SDNY 1993) (quoting Bevevino v. Saydjari, 574 F. 2d 676, 684 (CA2 1978)). Assuming (as we have no reason to question) that this is a correct interpretation of what Rule 59 requires, it is undeniable that the federal rule is " `sufficiently broad' to cause a `direct collision' with the state law or, implicitly, to `control the issue' before the court, thereby leaving no room for the operation of that law." Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5 (1987). It is simply not possible to give controlling effect both to the federal standard and the state standard in reviewing the jury's award. That being so, the court has no choice but to apply the Federal Rule, which is an exercise of what we have called Congress's "power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either," Hanna, 380 U. S., at 472.

* * *

There is no small irony in the Court's declaration today that appellate review of refusals to grant new trials for error of fact is "a control necessary and proper to the fair administration of justice," ante, at 19. It is objection to precisely that sort of "control" by federal appellate judges that gave birth to the Reexamination Clause of the Seventh Amendment. Alas, those who drew the Amendment, and the citizens who approved it, did not envision an age in which the Constitution means whatever this Court thinks it ought to mean--or indeed, whatever the courts of appeals have recently thought it ought to mean.

When there is added to the revision of the Seventh Amendment the Court's precedent setting disregard of Congress's instructions in Rule 59, one must conclude that this is a bad day for the Constitution's distinctive Article III courts in general, and for the role of the jury in those courts in particular. I respectfully dissent.


1 This objection was repeatedly made following the Constitutional Convention, see, e.g., Martin, Genuine Information, in 3 Records of the Federal Convention of 1787, pp. 172, 221-222 (M. Farrand ed. 1911); Gerry, Reply to a Landholder, id., at 298, 299, and at the ratifying conventions in the States, see, e.g., 3 J. Elliot, Debates on the Federal Constitution 525, 540-541, 544-546 (1863) (Virginia Convention, statements of Mr. Mason and Mr. Henry); 4 id., at 151, 154 (North Carolina Convention, statements of Mr. Bloodworth and Mr. Spencer).

Prior to adoption of the Amendment, these concerns were addressed by Congress in the Judiciary Act of 1789, 1 Stat. 73, which expressly directed, in providing for "reexamin[ation]" of civil judgments "upon a writ of error," that "there shall be no reversal in either [the Circuit or Supreme Court] . . . for any error of fact." §22, 1 Stat. 84-85. That restriction remained in place until the 1948 revisions of the Judicial Code. See 62 Stat. 963, 28 U.S.C. § 2105 (1994).

2 The Amendment was relied upon at least twice to prevent actual new trials. In Wonson itself, Justice Story rejected the United States' claim of right to retry, on appeal, a matter unsuccessfully put before a jury in the District Court--notwithstanding acceptance of such a practice under local law. The court based its ruling on statutory grounds, but its interpretation of its statutory jurisdiction was dictated by its view that a contrary interpretation would contravene the Seventh Amendment. 28 F. Cas., at 750. And in The Justices v. Murray, 9 Wall. 274, 281 (1870), this Court relied on Wonson in invalidating under the Seventh Amendment a federal habeas statute that provided for removal of certain judgments from state courts for purposes of retrial in federal court.

3 See, e.g., Wabash R. Co. v. McDaniels, 107 U.S. 454, 456 (1883) ("That we are without authority to disturb the judgment upon the ground that the damages are excessive cannot be doubted. Whether the order overruling the motion for a new trial based upon that ground was erroneous or not, our power is restricted to the determination of questions of law arising upon the record. Railroad Company v. Fraloff, 100 U.S. 24 [(1879)]"); Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 75 (1889) ("[H]owever it was ascertained by the court that the verdict was too large . . . , the granting or refusing a new trial in a Circuit Court of the United States is not subject to review by this court") (citing Parsons v. Bedford, 3. Pet. 433 (1830); Railroad Co. v. Fraloff, 100 U.S. 24 (1879)); Lincoln v. Power, 151 U.S. 436, 437-438 (1894) ("[I]t is not permitted for this court, sitting as a court of errors, in a case wherein damages have been fixed by the verdict of a jury, to take notice of [a claim of excessive damages] where the complaint is only of the action of the jury. . . . [W]here there is no reason to complain of the instructions, an error of the jury in allowing an unreasonable amount is to be redressed by a motion for a new trial") (citing Parsons, supra; Fraloff, supra); Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 242-246 (1897); Southern Railway Carolina Div. v. Bennett, 233 U.S. 80, 87 (1914) ("[A] case of mere excess upon the evidence is a matter to be dealt with by the trial court. It does not present a question for reexamination here upon a writ of error") (citing Lincoln, supra); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481-482 (1933) ("The rule that this Court will not review the action of a federal trial court in granting or denying a motion for a new trial for error of fact has been settled by a long and unbroken line of decisions; and has been frequently applied where the ground of the motion was that the damages awarded by the jury were excessive or were inadequate") (footnotes omitted).

4 The grounds for granting a new trial were "want of notice of trial; or any flagrant misbehavior of the party prevailing toward the jury, which may have influenced their verdict; or of any gross misbehavior of the jury among themselves: also if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith; or if they have given exorbitant damages; or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict." 3 W. Blackstone, Commentaries on the Laws of England 387 (1768) (footnotes omitted; emphases omitted).

5 See ibid. (new trial would be granted "if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith"). See, e.g., Berks v. Mason, Say. 264, 265, 96 Eng. Rep. 874, 874-875 (K. B. 1756); Bright v. Eynon, 1 Burr. 390, 390, 97 Eng. Rep. 365 (K. B. 1757); see also Note, Limitations on Trial by Jury in Illinois, 19 Chi. Kent L. Rev. 91, 92 (1940) ("An exhaustive examination of the early English cases has revealed not a single case where an English court at common law ever granted a new trial, as being against the evidence, unless the judge or judges who sat with the jury stated in open court, or certified, that the verdict was against the evidence and he was dissatisfied with the verdict").

Justice Stevens understands Blackstone to say that new trials were granted for excessiveness even where the nisi prius judge was not dissatisfied with the damages awarded, see ante, at 6-7. Blackstone's phrasing certainly allows for this reading, see n. 4, supra, but what indications we have suggest that the dissatisfaction of the presiding judge played the same role where the motion for new trial was based on a claim of excessive damages as where based on a claim of an erroneous verdict. See, e.g., Boulsworth v. Pilkington, Jones, T. 200, 84 Eng. Rep. 1216 (K. B. 1685); Anonymous, 1 Wils. K. B. 22, 95 Eng. Rep. 470 (K. B. 1743); Redshaw v. Brook, 2 Wils. K. B. 405, 95 Eng. Rep. 887 (C. P. 1769); Sharpe v. Brice, 2 Black. W. 942, 96 Eng. Rep. 557 (C. P. 1774). The cases cited by Justice Stevens, ante, at 7, n. 5, are not at all to the contrary: In one, the case was tried at the bar of the court, so that there was no nisi prius judge, see Wood v. Gunston, Sty. 466, 82 Eng. Rep. 867 (K. B. 1655); in the other, the judge who had presided at trial was on the panel that ruled on the new trial motion, and recommended a new trial, see Bright v. Eynon, supra, at 390" 391, 396-397, Eng. Rep., at 365, 368.

6 The Second Circuit, notwithstanding its practice with respect to excessiveness claims, will not review a district court's determination that the jury's liability ruling was supported by the weight of the evidence, see Stonewall Ins. Co. v. Asbestos Claims Management, 73 F. 3d 1178, 1199 (1995) (such a decision is "one of those few rulings that is simply unavailable for appellate review"), and the Eighth Circuit has questioned whether the Seventh Amendment permits appellate review of such determinations, see Thongvanh v. Thalacker, 17 F. 3d 256, 259-260 (1994); see also White v. Pence, 961 F. 2d 776, 782 (1992).

7 I am at a loss to understand the Court's charge that keeping faith with our precedents--and requiring that the courts of appeals do likewise--would " `destroy the uniformity of federal practice,' " ante, at 20, n. 19. I had thought our decisions established uniformity. And as for commentators' observations that it would be "`astonishing'" for us actually to heed our precedents, see ibid., quoting 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2820, p. 212 (2d ed. 1995), they are no more than a prediction of inconstancy--which the Court today fulfills.

8 Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494 (1931), is the only case cited in the Court's footnote that arguably involved the slightest departure from common law practices regarding review of jury findings. It held, to be sure, that new trial could be ordered on damages alone, even though at common law there was no practice of setting a verdict aside in part. But it did so only after satisfying itself that the change was one of "form" rather than "substance," quoting Lord Mansfield to the effect that "`for form's sake, we must set aside the whole verdict.'" Id., at 498 (quoting Edie v. East India Co., 1 Black W. 295, 298, 96 Eng. Rep. 166 (K. B. 1761)). It can hardly be maintained that whether or not a jury's damages award may be set aside on appeal is a matter of form. The footnote also cites 9A C. Wright & A. Miller, Federal Practice and Procedure §2522 (2d ed. 1995) for its discussion of Federal Rule of Civil Procedure 50(b), which permits post-trial motion for judgment as a matter of law. The Court neglects to mention that that discussion states: "The Supreme Court held that reservation of the decision in this fashion had been recognized at common law . . . ." Id., §2522, at 245.

9 Since I reject application of the New York standard on other grounds, I need not consider whether it constitutes "reexamination" of a jury's verdict in a manner "otherwise . . . than according to the rules of the common law."

10 Justice Stevens thinks that if an award "exceeds what is lawful," the result is "legal error" that "may be corrected" by the appellate court. Ante, at 5, n. 2. But the sort of "legal error" involved here is the imposition of legal consequences (in this case, damages) in light of facts that, under the law, may not warrant them. To suggest that every fact may be reviewed, because what may ensue from an erroneous factual determination is a "legal error," is to destroy the notion that there is a factfinding function reserved to the jury.

11 That the "shocks the conscience" standard was not the traditional one would seem clear from the opinion of Justice Story, quoted approvingly by the Court, ante, at 17, to the effect that remittitur should be granted "if it should clearly appear that the jury . . . have given damages excessive in relation to the person or the injury." Blunt v. Little, 3 F. Cas. 760, 761-762 (CC Mass. 1822).

12 I agree with the Court's entire progression of reasoning in its footnote 22, ante, at 21-22, leading to the conclusion that state law must determine "[w]hether damages are excessive." But the question of whether damages are excessive is quite separate from the question of when a jury award may be set aside for excessiveness. See supra, at 17. It is the latter that is governed by Rule 59; as Browning Ferris said, district courts are "to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered," 492 U. S., at 279 (emphasis added).