COMMENT

Gasperini v. Center for Humanities:

Clarifying Federal Appellate Review or Judicial License in Tort Reform?

We are told that we are to part with that trial by jury which our ancestors secured their lives and property with, and we are to build castles in the air, and substitute visionary modes of decision for that noble palladium. I hope we shall never be induced, by such arguments, to part with that excellent mode of trial.

. . . .

. . . Why do we love this trial by jury? Because it prevents the hand of oppression from cutting you off.⁽¹⁾

  Introduction

The Seventh Amendment of the United States Constitution provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and 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."⁽²⁾ Since its adoption, the Seventh Amendment has been the center of debates concerning the proper roles of judges and juries and the appropriate balance of federal and state interests in the federal court system.⁽³⁾ In Gasperini v. Center for Humanities, Inc.,⁽⁴⁾ a decision that focused on this debate, the United States Supreme Court held that the Seventh Amendment does not prevent a federal appellate court from reviewing a trial court's denial of a motion to set aside a compensatory damages award as excessive, so long as the appellate court's review is limited to an abuse of discretion standard.⁽⁵⁾ The Supreme Court also held that, in diversity actions, federal trial courts must use a state standard of review when determining whether a jury's award of compensatory damages is excessive.⁽⁶⁾

The concept that the Seventh Amendment limited federal appellate courts from reviewing jury verdicts for excessiveness was commonly accepted and upheld for many years.⁽⁷⁾ Notwithstanding this prohibition, and with no explicit authority from Congress or the Supreme Court, approximately fifty years ago federal appellate courts began to review allegedly excessive jury verdicts.⁽⁸⁾ Despite this recent--albeit questionable--practice by the federal appellate courts, the Supreme Court, prior to Gasperini, thrice reserved comment on the constitutionality of this type of review.⁽⁹⁾

This Comment analyzes the Court's decision in Gasperini and considers its potential impact on the federal court system.⁽¹⁰⁾ This Comment argues that federal appellate courts should not review district court denials of motions to set aside allegedly excessive jury verdicts, absent any legal error. Nor should a federal trial court, sitting in a diversity action, apply a restrictive state standard of review when it reviews a jury's verdict for excessiveness.⁽¹¹⁾ This Comment addresses the disputed question of whether federal appellate courts actually have authority to engage in this type of review, and if so, what should be the standard for such review.⁽¹²⁾

Part II.A-B provides a brief history of appellate review as it existed in English common law and the subsequent adoption of the Seventh Amendment.⁽¹³⁾ Part II.C-F also discusses current federal appellate review and the Supreme Court's pre-Gasperini position on the constitutionality of this type of review.⁽¹⁴⁾

Part III summarizes case facts and procedural posture and provides the majority and the dissenting views of the issues presented in the case.⁽¹⁵⁾ Part IV examines the majority's enigmatic approach, questioning the soundness and clarity of its reasoning.⁽¹⁶⁾ In addition, Part IV considers the resulting systemic changes in the federal courts, including the increased burden upon federal appellate judges, the shift of power away from juries, and the obstacles litigants can expect to face when seeking resolution of their actions in diversity forums.⁽¹⁷⁾ Part V concludes the Comment with a brief summary.⁽¹⁸⁾

  History and Background

In the federal court system, a litigant who is disappointed with a jury's assessment of compensatory damages has several procedural devices available to dismiss or reduce an unfavorable verdict.⁽¹⁹⁾ One way to challenge the jury's verdict is to file a motion to set aside the verdict because the damages awarded are excessive or, alternatively, to file a motion for a new trial on the same grounds.⁽²⁰⁾ Either motion requires the trial judge to review the jury's findings.⁽²¹⁾ Upon review of the jury's findings, if the trial judge finds the compensatory damages award so unreasonable as to be a miscarriage of justice, he can order remittitur or grant a new trial.⁽²²⁾ If the trial judge declines to interfere with the jury's verdict, the defendant may seek appellate review by contending that, in allowing the verdict to stand, the trial judge has committed an error of law.⁽²³⁾

Traditionally, federal appellate courts limited their review of trial court denials of motions for new trial to errors of law.⁽²⁴⁾ They now extend their review to factual questions, specifically, the jury's determination of compensatory damages.⁽²⁵⁾ This current practice of unlimited appellate review in the federal court system defies a well settled practice of limited review that dates back to the adoption of the Seventh Amendment.⁽²⁶⁾

A.  Rules of the English Common Law

At the time of the adoption of the Seventh Amendment, the system of judicial review was governed by English common law practice.⁽²⁷⁾ The English judicial system consisted of the Court of Common Pleas, the Exchequer, and the King's Bench, all of which were based at Westminster.⁽²⁸⁾ Because the method of trying cases at Westminster was deemed inefficient, a more efficient system, which became known as the nisi prius system, eventually was developed.⁽²⁹⁾ The nisi prius system allowed cases to be tried in the counties where the jurors, parties, and witnesses resided.⁽³⁰⁾ A nisi prius jury would decide matters of fact that were in dispute, then a nisi prius judge would return to Westminster to enter the jury's verdict.⁽³¹⁾ Any other pleadings and arguments in the case, such as a motion for new trial, were heard at Westminster.⁽³²⁾

The judges at Westminster gave great deference to the findings of the juries.⁽³³⁾ A jury's verdict was so highly regarded that it "could be set aside only if the judge who had presided at the trial and heard the witnesses deemed the verdict to be unjustified."⁽³⁴⁾ Grounds for setting aside a jury verdict or granting a motion for new trial included jury misconduct, improper jury instructions, a verdict against the weight of the evidence, or excessive damages.⁽³⁵⁾

Although the historical record is unclear regarding the exact nature of appellate review as it existed in the common law,⁽³⁶⁾ it appears that a challenge of a jury verdict based on excessive damages was left to the discretion of the judge who presided at the trial.⁽³⁷⁾ Appellate review was limited to questions of law in the form of writs of error.⁽³⁸⁾ The legal historian William Blackstone once stated:

A writ of error lies for some supposed mistake in the proceedings of a court of record. . . . 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; and there is no method of reversing an error in the determination of facts, but by an attaint, or a new trial, to correct the mistakes of the former verdict.⁽³⁹⁾Appellate review was limited to questions of law because questions of fact were left to the discretion of the jury.⁽⁴⁰⁾ Ultimately, the system of review as it existed in English common law formed the foundation of appellate review in the American civil litigation system.⁽⁴¹⁾

B.  Adoption of the Seventh Amendment

Trial by jury was of the utmost importance to the American colonists because it represented a means of independence from the oppression of government.⁽⁴²⁾ Accordingly, the Judiciary Act of 1789, which founded the federal judicial system, precluded appellate review of facts found by juries.⁽⁴³⁾ Likewise, the adoption of the Seventh Amendment in 1791, was predicated upon the preservation of the right to trial by jury.⁽⁴⁴⁾ The Framers of the Seventh Amendment wanted to ensure a check against the powers of trial and appellate judges.⁽⁴⁵⁾ The Re-examination Clause of the Seventh Amendment provided that check by specifically precluding review of facts found by juries other than by common law.⁽⁴⁶⁾ In interpreting the mandate of the Seventh Amendment, the Supreme Court has consistently stated that questions of fact "shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative."⁽⁴⁷⁾

C.  United States Supreme Court's Position Prior to Expansion of Appellate Review

1.  Traditional Limitations on Review of Jury--Decided Damages

From the time of the adoption of the Seventh Amendment, it has been a settled principle that trial courts had unreviewable discretion to review the jury's verdict for excessiveness,⁽⁴⁸⁾ and to reduce the amount of the damages award or, alternatively, to grant a new trial.⁽⁴⁹⁾ A long line of authority supports the proposition that appellate courts were restricted from reviewing questions of damages.⁽⁵⁰⁾ Traditional reasons for this constraint on appellate review were: English common law limitations to writs of error;⁽⁵¹⁾ the rule that a motion for a new trial is a matter within the discretion of the trial court;⁽⁵²⁾ the Judiciary Act of 1789;⁽⁵³⁾ and, the Seventh Amendment.⁽⁵⁴⁾ Justice Story once explained:The only modes known to the common law to re-examine [facts found by a jury], 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.⁽⁵⁵⁾

Consequently, because the English common law, which had been adopted by the Seventh Amendment, provided a barrier to appellate review of factual findings by juries, the United States Supreme Court, as well as the Courts of Appeals, were bound by that restriction.⁽⁵⁶⁾

2.  Quantum of Damages--A Question of Fact for the Jury

These historical limitations derived from the principle that the quantum of damages is a question of fact.⁽⁵⁷⁾ The United States Supreme Court once stated that "motions for new trial based on [an excessive damages claim] present `purely a question of fact' . . . which cannot be reviewed."⁽⁵⁸⁾

In 1879, Justice Harlan observed that appellate review of excessive jury verdicts was not available:

[T]his 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. . . . Whether [the trial court's] action, in that particular, 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 by the jury under instructions correctly defining the legal rights of the parties.⁽⁵⁹⁾

In 1933, Justice Brandeis explained that the idea that the Supreme 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 [including excessive damages] has been settled by a long and unbroken line of decisions."⁽⁶⁰⁾ Likewise, the rule prohibiting review also applied to review of by a federal court of appeals.⁽⁶¹⁾ In fact, as recently as 1945, appellate review of jury verdicts was deemed prohibited by the circuit courts of appeal.⁽⁶²⁾ As explained by the Third Circuit, "[a] long list of cases in the federal courts demonstrates clearly that the federal appellate courts, including the Supreme Court, will not review a judgment for excessiveness of damages . . . ."⁽⁶³⁾

D.  Trial Court Review of the Jury's Findings: Shocking the Judicial Conscience?

The standard of review for a trial court examination of a jury's assessment of compensatory damages was judicially created.⁽⁶⁴⁾ In the federal system, the circuit courts have articulated many formulas as the appropriate standard of review, such as a "clearly erroneous"⁽⁶⁵⁾ or "grossly excessive" standard.⁽⁶⁶⁾ Yet, most of these standards are simply an elaboration of the "shocks the conscience" standard.⁽⁶⁷⁾ For instance, the Third Circuit instructs that, although a trial judge may believe "the jury to be unduly generous,"⁽⁶⁸⁾ the judge must find that "no rational jury, acting on the basis of the full evidentiary record, and without being inflamed by passion or prejudice or other improper consideration, could have awarded such a large sum as damages."⁽⁶⁹⁾ In other words, a judge may overturn a jury verdict as excessive if the amount of damages shocks his judicial conscience.⁽⁷⁰⁾ Typically, a judge's conscience will not be "shocked" if a fact found by a jury is determined to be reasonable based on the evidence presented.

E.  Expansion of Federal Appellate Review

1.  A Little Dicta Goes a Long Way

Although once forbidden, the modern trend favors appellate review of trial court denials of motions for new trial based on the size of the damages.⁽⁷¹⁾ A number of factors led to this expansion of federal appellate review.⁽⁷²⁾ The largest influence upon the circuits came in 1950, when the Supreme Court stated in dictum, "We agree with the Court of Appeals that the amount of damages awarded by the District Court's judgment is not monstrous in the circumstances of this case."⁽⁷³⁾ The issue of the size of the damages award was not an issue before the Court.⁽⁷⁴⁾ Nonetheless, this dictum influenced the view of many circuits that they possessed the authority to review the size of jury verdicts.⁽⁷⁵⁾ Gradually, nearly all circuit courts of appeal began to engage in review of lower court decisions denying motions to set aside jury verdicts as being excessive or requests for a new trial based on the same claim.⁽⁷⁶⁾

2.  Federal Appellate Review of the Trial Court: Abuse of Discretion

As with trial court review of jury verdicts, there is no bright line rule for the standard applicable to appellate review of trial court decisions.⁽⁷⁷⁾ The scope of judicial review applied to federal trial court denials of motions for new trial is narrow and the standard most commonly articulated is "abuse of discretion."⁽⁷⁸⁾ Although denied motions for new trial are now reviewed, some courts of appeal hesitate to overturn trial court decisions.⁽⁷⁹⁾ A few courts insist that the abuse of discretion be "grave,"⁽⁸⁰⁾ or "manifest"⁽⁸¹⁾ before they will reverse the trial court's decision. The Tenth Circuit will not reverse a trial court's decision absent a showing of abuse of discretion, because a motion for new trial based on the size of the damages is a question of fact; the decision is left to the discretion of the trial court.⁽⁸²⁾ Likewise, the Fifth Circuit has held that a reversal of a trial court judge's denial of a motion for new trial can be granted only for a clear abuse of discretion; if a reasonable basis exists for the jury verdict, no reversal is available.⁽⁸³⁾

3.  Appellate Review of the Jury: Excessive by What Standard?

When there is a claim of inadequacy or excessiveness in the size of the jury's verdict, federal appellate courts not only review the record of the trial court proceedings for legal errors, they also review the jury's verdict itself, and order remittitur or new trial based on excessiveness.⁽⁸⁴⁾ Despite this assumption of power by the federal appellate courts, differences exist among the circuits regarding the appropriate standard for review.⁽⁸⁵⁾ Some circuits apply a state standard for review.⁽⁸⁶⁾ The Second Circuit, for instance, has held that, under the Erie doctrine, the state standard is substantive, and, thus, preempts the federal standard.⁽⁸⁷⁾ Several other circuits have held that the federal standard for review must be followed in diversity actions.⁽⁸⁸⁾ For example, the Fourth Circuit has held that the "'granting or denial of a new trial in a diversity action is a matter of procedure governed by federal law and not by state substantive law.'"⁽⁸⁹⁾ While a few courts have blurred any distinction between the standards by determining the excessiveness of the damages in a single case under both the state and federal standards.⁽⁹⁰⁾

Application of the federal standard⁽⁹¹⁾ dictates that, if the damages awarded are so exorbitant as to "shock" the conscience of the appellate judge, then the trial judge abused his discretion by allowing the jury's verdict to stand.⁽⁹²⁾ The Third Circuit instructs that, before a judge may overturn a jury verdict, the size of the verdict must "be so unreasonable as to offend the conscience of the Court."⁽⁹³⁾ The Fifth Circuit has stated that the jury's verdict must either "be so large as to `shock the judicial conscience,' `so gross or inordinately large as to be contrary to right reason,' . . . or as `clearly exceeding that amount that any reasonable man could feel the claimant is entitled to.'"⁽⁹⁴⁾

F.  United States Supreme Court: Acquiescence by Silence (from Expansion to Gasperini)

The disparity among the circuits regarding the correct standard for review remains, in large part, because of the absence of any clear-cut guidance from the Supreme Court.⁽⁹⁵⁾ Prior to deciding Gasperini v. Center for Humanities, Inc.,⁽⁹⁶⁾ the Supreme Court has, on at least three occasions, passed on the opportunity to state definitively whether federal appellate courts are authorized to review jury verdicts for excessiveness, and, if so, to mandate an applicable standard for such review.⁽⁹⁷⁾

The Court's first opportunity came in 1955, when the Court granted certiorari in Neese v. Southern Railway Co.⁽⁹⁸⁾ Although the only issue before the Court was whether the court of appeals could review a lower court's denial of a new trial based on an excessive jury verdict, the Court did not decide that issue.⁽⁹⁹⁾ Rather, the Court determined that, because there was sufficient evidence to support the verdict, the court of appeals should not have upset the trial court's decision.⁽¹⁰⁰⁾

In 1968, the Court granted certiorari in Grunenthal v. Long Island Railroad Co.⁽¹⁰¹⁾ to determine whether the Seventh Amendment prohibited federal appellate review of the size of the jury verdict.⁽¹⁰²⁾ The Court purported not to decide the appellate review issue, concluding instead that the trial court judge's decision was proper and should not have been disturbed.⁽¹⁰³⁾ The Court did note, in a footnote, that each appellate court has held that the Seventh Amendment does not prohibit appellate review.⁽¹⁰⁴⁾

The Court's third opportunity to define the expanse of appellate review came in 1989, when it granted certiorari in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.⁽¹⁰⁵⁾ One of the issues then before the Court was the proper standard of review for allegedly excessive punitive damages.⁽¹⁰⁶⁾ Once again, the Court failed to definitively state whether appellate court review of excessive jury verdicts was reconcilable with the Seventh Amendment.⁽¹⁰⁷⁾

  Gasperini v. Center for Humanities, Inc.

Notwithstanding the Court's silence regarding the legitimacy of appellate review and the presumed prohibition of the Seventh Amendment, nearly every circuit court engages in appellate review of allegedly excessive jury verdicts. Now, the Court, in Gasperini, has equipped the appellate courts with concrete authority to review trial court denials of motions either to set aside a jury verdict as being excessive or to grant a new trial for the same claim. In addition, the Court has taken the opportunity to lend guidance on the appropriate standard of review at both the trial and appellate levels.⁽¹⁰⁸⁾

A.  Facts of the Case

The Petitioner, William Gasperini, a journalist and photographer for CBS News and the Christian Science Monitor, "took over 5000 slide transparencies, depicting active war zones, political leaders, and scenes from daily life" in Central America.⁽¹⁰⁹⁾ Gasperini loaned 300 of these original slide transparencies to the respondent, The Center for Humanities, Inc. (Center) for use in an educational videotape, Conflict in Central America.⁽¹¹⁰⁾ According to the parties' agreement, the Center was to return the slides upon completion of the videotape.⁽¹¹¹⁾ However, the Center lost the transparencies.⁽¹¹²⁾ Consequently, Gasperini filed a complaint, based on diversity jurisdiction, in federal court⁽¹¹³⁾ "alleging breach of contract, conversion, and negligence."⁽¹¹⁴⁾ The Center acknowledged liability, and a trial by jury proceeded solely on the issue of damages.⁽¹¹⁵⁾ During the trial, the jury heard expert testimony regarding the "industry standard" for the measure of damages.⁽¹¹⁶⁾ Consequently, the jury awarded Gasperini $450,000 in compensatory damages.⁽¹¹⁷⁾ The Center moved for a new trial under Federal Rule of Civil Procedure 59, claiming the verdict was excessive.⁽¹¹⁸⁾ The district court denied the motion without comment.⁽¹¹⁹⁾ The Center then appealed to the Court of Appeals for the Second Circuit (the Second Circuit).⁽¹²⁰⁾

B.  Holding of the Second Circuit

In its appeal to the Second Circuit, the Center asserted that the trial judge erred in allowing the jury to hear expert testimony on the "industry standard" for the measure of damages.⁽¹²¹⁾ The Second Circuit, however, determined that the trial judge properly instructed the jury to consider the uniqueness of the slides and the earning level of the photographer when determining the proper amount of damages to award Gasperini.⁽¹²²⁾ Accordingly, the Second Circuit concluded that the trial judge had not committed an error of law in allowing the jury to hear testimony regarding the industry standard.⁽¹²³⁾ Nonetheless, the Second Circuit went on to review the findings of the jury regarding the proper amount of damages.⁽¹²⁴⁾

In reviewing the lower court's decision, the Second Circuit applied New York's standard for reviewing an allegedly excessive damage award.⁽¹²⁵⁾ New York Civil Practice Law and Rules 5501(c) [hereinafter CPLR 5501(c)], provides that the New York Appellate Division "`shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.'"⁽¹²⁶⁾ As directed by CPLR 5501(c), the Second Circuit considered the uniqueness of the transparencies and Gasperini's earning level.⁽¹²⁷⁾ Accordingly, the court determined that "no reasonable jury could have concluded . . . that each of the lost three hundred transparencies was equally, and significantly, original."⁽¹²⁸⁾ Additionally, "the Second Circuit concluded that [expert witness] testimony [regarding] industry standard [] was insufficient" to support a $450,000 award.⁽¹²⁹⁾ Although the Second Circuit found some of the transparencies unique, it concluded that no more than 50 slides warranted $1,500 and that "any damage award of more than $100 per [remaining] transparency would be excessive."⁽¹³⁰⁾

Therefore, the Second Circuit vacated the judgment as excessive under New York law, "and ordered a new trial unless Gasperini agreed to a $100,000 award."⁽¹³¹⁾ Subsequently, Gasperini appealed the Second Circuit decision.⁽¹³²⁾ Recognizing the importance of the issue, the Supreme Court granted certiorari.⁽¹³³⁾

C.  Holding of the United States Supreme Court

In a five-to-four decision,⁽¹³⁴⁾ the Supreme Court held that a federal appellate court can review a trial court's denial of a motion for a new trial based on an alleged excessive jury damages award,⁽¹³⁵⁾ as long as the trial court's decision is reviewed only for abuse of judicial discretion.⁽¹³⁶⁾ Additionally, the Court held that, in diversity actions, the Second Circuit federal court must apply the New York standard of review for determining the reasonableness of damages.⁽¹³⁷⁾

The majority held that the district court should have applied New York law to determine whether or not the Center was entitled to a new trial because of the excessiveness of the jury verdict.⁽¹³⁸⁾ Therefore, it vacated the Second Circuit's decision and remanded the case to the district court for application of CPLR 5501(c) to the review of the jury verdict.⁽¹³⁹⁾

In determining that CPLR 5501(c) was the applicable standard of review for the trial court to use, the majority applied an Erie doctrine⁽¹⁴⁰⁾ analysis.⁽¹⁴¹⁾ In applying the Erie analysis, the majority determined that CPLR 5501(c) is substantive,⁽¹⁴²⁾ and as such, it must be applied in both state and federal courts.⁽¹⁴³⁾ The Court also maintained that application of the New York law would discourage forum shopping and promote equitable administration of the laws.⁽¹⁴⁴⁾ The Court noted that "New York's dominant interest can be respected, without disrupting the federal system, once it is recognized that the federal district court is capable of performing the checking function, i.e., that court can apply the State's `deviates materially' standard in line with New York case law evolving under CPLR 5501(c)."⁽¹⁴⁵⁾

Additionally, the Court held that the Seventh Amendment required application of the abuse of discretion standard at the appellate level.⁽¹⁴⁶⁾ Although Justice Ginsburg conceded that prior decisions by the Court have suggested that this type of review violates the Seventh Amendment, she stated, "[A]ppellate review for abuse of discretion is reconcilable with the Seventh Amendment as a control necessary and proper to the fair administration of justice."⁽¹⁴⁷⁾ Therefore, Justice Ginsburg concluded that appellate review of the size of jury-awarded damages was constitutionally permissible.⁽¹⁴⁸⁾

D.  Dissenting Opinion of Justices Scalia, Thomas, and Chief Justice Rehnquist

In dissenting, Justice Scalia criticized the majority's decision as "overrul[ing] a longstanding and well-reasoned line of precedent that has for years prohibited federal appellate courts from reviewing refusals by district courts to set aside civil jury awards as contrary to the weight of the evidence."⁽¹⁴⁹⁾ He noted a long history of prohibition against such review, citing the English common law, the Judiciary Act of 1789, the Seventh Amendment, the Federal Rules of Civil Procedure, and a long line of cases.⁽¹⁵⁰⁾ Moreover, he asserted that because Federal Rule of Civil Procedure 59 provided the answers to the issues presented, an Erie analysis was unnecessary.⁽¹⁵¹⁾

Scalia maintained that the Seventh Amendment was designed to prevent judicial usurpation of the fact finding role of the jury.⁽¹⁵²⁾ He stated "[t]here 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'. . . . It is objection to precisely that sort of `control' by federal appellate judges that gave birth to the Re-examination Clause of the Seventh Amendment."⁽¹⁵³⁾

Additionally, Justice Scalia criticized the majority's interpretation of the Seventh Amendment.⁽¹⁵⁴⁾ He concluded his dissent strongly by stating, "[t]hose 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."⁽¹⁵⁵⁾

  Analysis

A starting point for analyzing the permissibility of review of the size of jury-decided compensatory damages in diversity actions is the Rules of Decision Act (RDA).⁽¹⁵⁶⁾ The RDA provides that "[t]he law of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."⁽¹⁵⁷⁾ The Constitution, through the Seventh Amendment, requires that jury findings are not to be reviewed except as provided by common law.⁽¹⁵⁸⁾ The common law permits trial courts to review and overturn jury findings under a "shocks the conscience" standard.⁽¹⁵⁹⁾ The common law does not, however, permit appellate level review of jury findings unless, in allowing the jury's findings to stand, the trial court has committed a legal error.⁽¹⁶⁰⁾ Accordingly, logic dictates that, pursuant to the RDA, because the Seventh Amendment "otherwise requires," state law must yield to the federal reviewing guidelines.

Given this simple analysis, it is perplexing that the Court chose to apply an Erie analysis to the issue of federal appellate review of allegedly excessive compensatory damages.⁽¹⁶¹⁾ Equally confusing is the Court's manipulation of the Seventh Amendment and resulting conclusion that, although the federal standard controls appellate review, the state standard controls trial court review.⁽¹⁶²⁾ The remainder of this analysis will illuminate the Court's inconsistent interpretation and rejection of the Seventh Amendment's prohibition on expanded federal appellate review.⁽¹⁶³⁾ In addition, this analysis will illustrate that the argument against expanded appellate review is not based merely on the English common law, but is grounded in the considerations of the practical effects of the Court's decision.⁽¹⁶⁴⁾

A.  Approval of Current Practice of Federal Appellate Review

1.  Against the Weight of Historic Authority

The majority acknowledges that federal appellate review of excessive compensatory damage awards "was once deemed inconsonant with the Seventh Amendment's [R]e-examination Clause"⁽¹⁶⁵⁾ and that, as late as 1954, the Court deemed appellate review in the federal courts as being limited "ultimately by the Seventh Amendment."⁽¹⁶⁶⁾ Early cases illustrate that when the Court was first faced with the question of the constitutionality of overturning jury findings, the Court looked to the language and purpose of the Seventh Amendment for guidance.⁽¹⁶⁷⁾ This in turn led the Court to examine the practice of English common law as it existed at the time of the adoption of the Seventh Amendment.⁽¹⁶⁸⁾ These cases demonstrate that the Seventh Amendment's prohibition on review of jury verdicts, other than as it existed under the common law, should have precluded the Erie question of law.⁽¹⁶⁹⁾ This point is best illustrated by the 1935 Supreme Court decision in Dimick v. Schiedt.⁽¹⁷⁰⁾ There, the Court was presented with the issue of the constitutionality of additur.⁽¹⁷¹⁾ In determining that additur was unconstitutional, the Court first looked at the rules of common law as established at the time of the adoption of the Seventh Amendment.⁽¹⁷²⁾ The Court then concluded that, when the Seventh Amendment was adopted, additur was not practiced under common law, and, thus, could not be practiced in the federal courts.⁽¹⁷³⁾ The Court also noted that remittitur had been practiced for one hundred years and had become a part of federal jurisprudence and, as a result, could not be discarded by the Court.⁽¹⁷⁴⁾

Additionally, the Dimick Court observed that it was "dealing with a constitutional provision which has in effect adopted the rules of the common law. . . . To effectuate any change in these rules is . . . to alter the Constitution."⁽¹⁷⁵⁾ The Court then concluded that it could not alter the Constitution because "in a very special sense [the Court] is charged with the duty of construing and upholding the Constitution."⁽¹⁷⁶⁾ Now, as then, the Court is responsible for interpreting the Constitution, not revising it.⁽¹⁷⁷⁾

2.  Giving "Legitimacy to a Doctrine of Doubtful Constitutionality"

Some suggest that the relatively recent practice of federal appellate review has "been `accomplished by a blizzard of dicta' that, through repetition alone, has `given legitimacy to a doctrine of doubtful constitutionality.'"⁽¹⁷⁸⁾ Likewise, the majority observed that "appellate review of a federal trial court's denial of a motion to set aside a jury's verdict as excessive is a relatively late, and less secure, development."⁽¹⁷⁹⁾ Nonetheless, the Gasperini Court expressly sanctioned the appellate courts' acquisition of power.⁽¹⁸⁰⁾ In support of this affirmative expansion of appellate power, the Court observed that, although it has never expressly approved of federal appellate review of a lower court's denial of a motion to set aside an award as being excessive, the Court has recognized that the appellate courts engage in this type of review.⁽¹⁸¹⁾ The Gasperini Court identified two such cases: Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.⁽¹⁸²⁾ and Grunenthal v. Long Island Railroad Co.⁽¹⁸³⁾

In Browning-Ferris, a diversity action, the Court was faced with the question of whether an award of punitive damages violated the Excessive Fines Clause of the Eighth Amendment.⁽¹⁸⁴⁾ The Court was also asked, and subsequently refused, to decide the proper standard for reviewing punitive damages for excessiveness.⁽¹⁸⁵⁾ As gleaned from Browning-Ferris, the Gasperini Court stated: "`[T]he role of the district court is to determine whether the jury's verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. The court of appeals should then review the district court's determination under an abuse-of-discretion standard.'"⁽¹⁸⁶⁾

When deciding Browning-Ferris, the Court did not address the constitutionality of appellate review regarding excessive compensatory damage awards.⁽¹⁸⁷⁾ Browning-Ferris, therefore, is distinguishable from Gasperini in that it involved punitive damages, not compensatory damages.⁽¹⁸⁸⁾ Compensatory damages, the actual extent of a plaintiff's economic injury, are questions of fact.⁽¹⁸⁹⁾ In comparison, punitive damages address the extent to which a defendant should be punished for injuring the plaintiff, which is not necessarily a factual question.⁽¹⁹⁰⁾ The constraints of the Seventh Amendment's Re-examination Clause, therefore, do not apply equally to punitive and compensatory damages. Consequently, the Browning-Ferris dicta does not actually lend support to federal appellate review of compensatory damages.⁽¹⁹¹⁾

The second statement on which the Gasperini majority relied came from Justice Stewart's dissenting opinion in Grunenthal v. Long Island R.R. Co.: "`[N]othing in the Seventh Amendment . . . precludes appellate review of the trial judge's denial of a motion to set aside [a jury verdict] as excessive.'"⁽¹⁹²⁾ Without more, this dissenting statement, when compared to the weight of Supreme Court precedent to the contrary, should not be considered persuasive authority for the proposition that the Seventh Amendment does not bar appellate review. Consequently, recognition that the courts of appeal exercise this type of review (although prohibited by the Seventh Amendment), combined with the assailable authority upon which the courts have relied to engage in this type of review,⁽¹⁹³⁾ is weak support for Supreme Court approval.⁽¹⁹⁴⁾

3.  Form and Substance of the Re-examination Clause

The majority further sought to support its conclusion by contending that, if we followed only the form and command of the Seventh Amendment as it existed in 1791, then "according to the rules of the common law,"⁽¹⁹⁵⁾ we would still require that all juries be all male or consist of twelve jurors.⁽¹⁹⁶⁾ To be sure, the Seventh Amendment was not intended "to perpetuate in changeless form the minutiae of trial practice as it existed . . . in 1791."⁽¹⁹⁷⁾

The Seventh Amendment "is both substantive and procedural"--procedural in that the first clause concerns the form of a jury, substantive in that the second clause addresses the functions of a jury.⁽¹⁹⁸⁾ The Seventh Amendment does not forbid changes in the form of the jury but does "forbid [changes that] curtail the function of the jury to decide questions of fact as it did before the adoption of the Amendment."⁽¹⁹⁹⁾ Consequently, the form-over-substance argument the majority puts forth fails because Gasperini concerns the function of the jury, not its composition.⁽²⁰⁰⁾

Moreover, reading the Constitution in the context of our times does not require us to abandon the import of the Seventh Amendment.⁽²⁰¹⁾ The language of the Seventh Amendment's Re-examination Clause is but an expression of its purpose: "to safeguard the jury's function from any encroachment which the common law did not permit."⁽²⁰²⁾ The jury function that needed protection from encroachment was, and still is, the fact-finding function.⁽²⁰³⁾ The Framers' concern with jury preservation resulted in the axiom that "[j]udges decide questions of law [and] juries decide questions of fact."⁽²⁰⁴⁾ It is "this distinction in the allocation of power between [judges and juries that is at the core] of the Seventh Amendment."⁽²⁰⁵⁾ Courts have complied with the substance of the Seventh Amendment for over one hundred years; only recently have appellate courts ignored the Amendment's prohibition against re-examination of jury findings other than as permitted by common law.⁽²⁰⁶⁾

4.  Questions of Law and Fact

The Gasperini Court conceded that, prior to its decision, it was well established that appellate courts could review only questions of law, not questions of fact.⁽²⁰⁷⁾ The Court circumvented this well established rule by concluding that, in reviewing the lower court's decision, the appellate court was reviewing a question of application of law.⁽²⁰⁸⁾ However, as one scholar explained, "[t]here is a world of difference between a legally incorrect input that taints a jury's verdict and an output that is `tainted' only by a federal [appellate] court's after-the-fact assessment that the verdict is [excessive]."⁽²⁰⁹⁾

Even if couched as a question of the application of law, review of a jury verdict necessarily entails review of the facts found by the jury.⁽²¹⁰⁾ To explain, to find that the damages awarded by the jury were excessive, and to calculate a new award, the Second Circuit Court had to re-examine the facts found by the jury--that is, the uniqueness of the photographs and the earning potential of Gasperini.⁽²¹¹⁾ The jury had been instructed to consider those factors, among others, in determining the amount of damages.⁽²¹²⁾ For the Second Circuit to find otherwise usurped the power of the jury accorded by the Seventh Amendment.⁽²¹³⁾ By granting federal appellate courts explicit authority to review a jury's determination of compensatory damages, absent clear legal error by the trial judge, the Gasperini Court has permitted, indeed, invited, precisely what the Framers of the Seventh Amendment sought to prohibit--judicial encroachment upon the jury's function in the federal court system.⁽²¹⁴⁾

B.  Impact of Gasperini on the Federal Court System

1. Upsetting the Balance

The balance of the federal court system is predicated upon the allocation of functions between the trial and appellate levels and between judges and juries.⁽²¹⁵⁾ Even if correct that federal appellate review of excessive compensatory damage awards is warranted, the Court failed to clarify why, in reviewing a district court judge's decision, a federal appellate court must use a federal standard; yet, when reviewing a jury's verdict as being excessive, a federal trial court must use a state standard.⁽²¹⁶⁾ As will be explained below, such contradictory standards arguably upset the balance of the federal system, potentially resulting in unpredictability.⁽²¹⁷⁾

In Gasperini, the Court acknowledged that the "`essential characteristic [of the federal system] is the manner in which . . . it distributes trial functions between judge and jury and, under the influence--if not the command--of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury.'"<sup>(218)</sup> The Court conceded that the Second Circuit neglected that "essential characteristic . . . when it used CPLR 5501(c) as `the standard for [federal] appellate review.'"⁽²¹⁹⁾ This is because, in the federal system, state interests cannot interfere with overriding federal procedural interests.⁽²²⁰⁾ Accordingly, "practical reasons combine[d] with Seventh Amendment constraints"⁽²²¹⁾ led the Court to conclude that federal appellate review must be limited to the federal abuse of discretion standard.⁽²²²⁾

The Court further observed 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."⁽²²³⁾ Applying the constraints of the Seventh Amendment to Gasperini should mean that a reviewing trial court should apply the "shocks the conscience standard" and a reviewing appellate court should apply an "abuse of discretion" standard.⁽²²⁴⁾ Nonetheless, the majority did not address this contradiction, but maintained that the "substantive thrust of [the state standard] can be given effect" without disrupting the balance of the federal court system⁽²²⁵⁾ if the trial court applies CPLR 5501(c), the state's "deviates materially" standard.⁽²²⁶⁾ Ironically, the New York legislature originally intended CPLR 5501(c) to be used by the appellate division, not the trial courts.⁽²²⁷⁾

Despite the Court's attempt to accommodate both federal and state interests, its decision likely will result in inconsistent outcomes between federal and state courts. For instance, application of a state standard, such as New York's "deviates materially" standard, may lead to inconsistent outcomes for two reasons. First, not all New York trial courts use the "deviates materially" standard; thus, litigants can not expect the same results when litigating in a New York state court as when litigating in a federal court (utilizing diversity jurisdiction).⁽²²⁸⁾ Second, some New York courts will apply the "deviates materially" standard at both the trial and appellate levels, whereas, the Second Circuit, sitting in diversity actions, will apply the "deviates materially" standard at the trial level, and "abuse of discretion" at the appellate level.⁽²²⁹⁾

Unfortunately, application of the abuse of discretion standard may also compel inconsistent outcomes. The inconsistency will arise, in part, because "abuse of discretion" is not clearly defined, and because the New York Appellate Division uses the "deviates materially" standard.⁽²³⁰⁾ As previously discussed, courts vary in defining "abuse of discretion"; interpretations range from "shocks the conscience" to "manifest abuse of discretion."⁽²³¹⁾ Yet, the Gasperini Court neglected to define precisely the abuse of discretion standard that federal appellate courts must now employ.⁽²³²⁾ Accordingly, the discretion afforded trial court decisions will uniformly vary according to the reviewing appellate court, and, thus, the Court's attempt to provide clear guidance to appellate courts has failed.

Additionally, the abuse of discretion standard is highly deferential to trial judges.⁽²³³⁾ Conversely, New York's state appellate review of jury verdicts is de novo.⁽²³⁴⁾ In other words, a New York appellate judge will re-examine all the evidence presented to the jury, whereas the federal appellate judge presumably will look only at the record of the case; potentially, leading to unpredictable rulings between federal and state decisions.⁽²³⁵⁾

2.  The Expanding Role of Appellate Judges

By strengthening the authority of federal appellate judges, the Court has incidently increased the federal appellate case load.⁽²³⁶⁾ In addition to performing "both aspects of the appellate function: error correction and law making,"⁽²³⁷⁾ federal appellate judges must now perform fact-finding functions.⁽²³⁸⁾ This will further erode the efficiency of an already burdened federal court system--ultimately forcing litigants to wait even longer to obtain final resolution of their legal problems.⁽²³⁹⁾

Studies indicate that the system is increasingly overburdened, and "[o]ver the last thirty years, combined civil and criminal case filings have increased almost 1000% in the . . . [federal] courts of appeals."⁽²⁴⁰⁾ The burden caused by the rise in the number of appeals is further exacerbated because "fewer and fewer cases decided by the courts of appeals are heard by the Supreme Court."⁽²⁴¹⁾ Consequently, the courts of appeals are being "squeezed from both ends."⁽²⁴²⁾

The Gasperini decision may further burden the federal court system because this type of review may encourage appeals,⁽²⁴³⁾ and presently there are not enough federal judges to handle the appeals already pending.⁽²⁴⁴⁾ This pressure will adversely affect the ability of litigants to receive a swift and adequate resolution to their disputes: "[L]itigants would be better off, and appellate court loads substantially lightened, if appellate review were clearly understood to be limited to serious errors of law, rather than to include a second evaluation of shadowy questions of a factual nature."⁽²⁴⁵⁾

An additional problem presented by this expansion of appellate review is the lack of judicial oversight⁽²⁴⁶⁾ of federal appellate judges to ensure that adjustment of jury awards is based on objective measures and not arbitrarily imposed by subjective considerations.⁽²⁴⁷⁾ For instance, in Gasperini, the Second Circuit determined which slide transparencies were unique and which were not--without viewing the videotape reproduction of several of the original slides.⁽²⁴⁸⁾ Instead, the Second Circuit ascertained the uniqueness of each slide by reviewing a paper record.⁽²⁴⁹⁾ The result is that many litigants will have little choice but to accept an appellate court's re-determination of the facts, rather than a jury's determination of the facts.⁽²⁵⁰⁾ Such an outcome contradicts the Court's pronouncement that appellate review is "necessary and proper to the fair administration of justice."⁽²⁵¹⁾

3.  The Diminishing Role of the Jury

By strengthening the power of federal appellate judges, the Court has also reduced the power of the federal jury in diversity actions.⁽²⁵²⁾ With its decision in Gasperini, the Court has taken the fact-finding function, traditionally left to the jury, and divided it between jury and judges.⁽²⁵³⁾

By interpreting the Seventh Amendment as providing appellate courts with the authority to review jury verdicts as being excessive and requiring application of state standards of review by the trial courts, the Court sends the message that juries cannot accurately evaluate evidence and assess the proper amount of damages.⁽²⁵⁴⁾ However, it is "[f]aith in the ability of a jury, selected from a cross-section of the community, to choose wisely among competing rational inferences in the resolution of factual questions [that] lies at the heart of the federal judicial system. That faith . . . does not permit the accommodation of more restrictive state laws."⁽²⁵⁵⁾ Application of New York's standard for review upsets the allocation of power between judge and jury in the federal system because it necessarily requires more exacting scrutiny of the jury verdict.⁽²⁵⁶⁾ To determine if the verdict is within the realm of reasonable compensation, the "'trial judge must weigh the evidence and decide the facts. In reviewing his decision the appellate court [judge] is [also] reviewing the case on the facts.'"⁽²⁵⁷⁾

The role of a juror is to assess the weight of evidence and the credibility of witnesses and, in so doing, determine the proper amount of damages.⁽²⁵⁸⁾ For instance, in Gasperini, the trial court directed the jury to consider the earning potential of Gasperini.⁽²⁵⁹⁾ Gasperini earned only $10,000 while he was taking the photographs ultimately at issue in the litigation.⁽²⁶⁰⁾ In considering Gasperini's earning potential, the jury was able to assess the credibility of his testimony that during the time he was taking photographs he was not actively marketing or selling his work, rather he was collecting photographs for the purpose of future sales.⁽²⁶¹⁾ In addition, the jury was directed to determine the uniqueness of the slides.⁽²⁶²⁾ Collectively, this group of twelve people had the opportunity to directly assess the slides at issue by viewing the videotape containing a reproduction of several of the slides and determining which ones were unique and which were not.⁽²⁶³⁾

Alternatively, the Second Circuit reviewed the record, and without the aid of viewing the videotape, determined the value of the slides.⁽²⁶⁴⁾ A federal appellate judge, reviewing a cold paper record, is no more equipped to determine the financial injury suffered by a plaintiff than is a jury who hears the witnesses and physically examines the evidence.⁽²⁶⁵⁾ Nor is the appellate judge better suited to police the sufficiency of the evidence than a competent trial judge.⁽²⁶⁶⁾

Is jury oversight really adequate justification for fact-specific case review by courts of appeal?⁽²⁶⁷⁾ Proponents answer yes, maintaining that federal appellate review for excessiveness is a necessary check against arbitrary and extreme verdicts.⁽²⁶⁸⁾ There are several checks presently in place, however, to guarantee that a jury's verdict is neither arbitrary nor extreme.⁽²⁶⁹⁾ Some safeguards include special verdicts, judgment as a matter of law, summary judgment, characterization of issues as questions of law, and appellate review of trial court decisions for errors of law.⁽²⁷⁰⁾ Furthermore, appellate re-trial of cases is an inefficient use of the judicial system; appellate judges should spend their time writing meaningful opinions and correcting errors of law, not re-deciding facts.⁽²⁷¹⁾

Others view the Gasperini decision as consistent with a growing trend of the Court to uphold state tort reform measures that encroach upon meaningful participation by the jury in our civil legal system.⁽²⁷²⁾ Most recently, in BMW of North America, Inc. v. Gore,⁽²⁷³⁾ the Court held that courts may review punitive damage awards for excessiveness.⁽²⁷⁴⁾ The Gasperini decision further jeopardizes the peer-decision role of the jury envisioned by our Forefathers--by usurping the jury's power to assess compensatory damages.⁽²⁷⁵⁾ The result? The disintegration of the ordinary citizen's shield against business-friendly state legislators and over-activist courts.⁽²⁷⁶⁾

4.  Winners Face More Hurdles While Losers Get "Two Bites at the Apple"

The current caseload in the federal court system is enormous.⁽²⁷⁷⁾ Consequently, "[f]ederal civil litigants now must endure . . . unavoidable, yet totally unacceptable, delays."⁽²⁷⁸⁾ For litigants in civil diversity actions, this increased appellate-level caseload will result in further delays and as many as three hurdles before parties are able to recover their damage awards.⁽²⁷⁹⁾ The first hurdle that a litigant must clear is the jury trial. The second hurdle is the motion to set aside the jury verdict as being against the weight of the evidence or, alternatively, a motion for a new trial.⁽²⁸⁰⁾ Given the Court's decision in Gasperini, the third hurdle is a review, and possible recalculation, of the size of the verdict by an appellate court.⁽²⁸¹⁾

Appellate court review may significantly decrease the ability of a litigant to receive efficient resolution of an action. More importantly, it may decrease the litigant's chances of receiving a just outcome.⁽²⁸²⁾ At least one study has shown an increasing trend in overturning jury verdicts.⁽²⁸³⁾ This study also noted that, when amending a jury award, courts of appeal almost always order remittitur rather than ordering a new trial.⁽²⁸⁴⁾ Consequently, more litigants may stand to lose their awards because, primarily, judges are deciding what our forefathers thought our peers should decide, and, secondarily, litigation delays are enormous and review of appellate decisions is inadequate.⁽²⁸⁵⁾

Alternatively, for litigants who have been ordered to pay damages, increased appellate authority to review will mean that they get two chances of overturning the jury's verdict. First, at the trial court level, the disgruntled litigant can request the trial judge to set aside the verdict as excessive, or alternatively, grant a new trial.⁽²⁸⁶⁾ Now, armed with the authority of Gasperini, the litigant is able to appeal the decision, regardless of clear error of law by the trial judge, and likely will receive a review of the jury verdict by an appellate court.⁽²⁸⁷⁾ This review is essentially a new trial because, as previously explained, to accurately determine if the jury's verdict is excessive, appellate judges must re-evaluate facts previously found by the jury.⁽²⁸⁸⁾ Not only does this give the defendants "two bites at the apple,"⁽²⁸⁹⁾ it places litigants, such as Gasperini, in the unfortunate position of choosing between the lesser amount of damages or the risks (and costs) of a new trial.⁽²⁹⁰⁾ Moreover, the final outcome for many litigants will come from overworked judges who will be reviewing nothing more than a cold paper record and may be substituting their subjective opinions for that of a jury.⁽²⁹¹⁾

  Conclusion

At first glance, the Gasperini decision appears merely to reaffirm what the federal appellate courts have been doing for some time now, reviewing trial court denials to set aside allegedly excessive jury-awarded compensatory damages.⁽²⁹²⁾ A closer look reveals an enigmatic analysis and holding that comprises the integrity of the jury system.⁽²⁹³⁾

The basic issues before the Court were whether appellate review of a trial court's denial of a motion to set aside a jury-decided compensatory damages award as excessive is constitutionally permissible, and if so, by what standard should that review be conducted? The answers to both questions are contained in the Re-examination Clause of the Seventh Amendment.⁽²⁹⁴⁾ Yet, the Court applied an Erie analysis, rejected the limitations of the Seventh Amendment, and upheld state tort reform measures designed to restrict a jury's decision-making abilities. Consequently, the court missed an opportunity to lessen the federal appellate caseload, streamline the litigation process, and provide a uniform guideline by which to review trial court decisions regarding questions of excessive damages.

After years of acquiescence, it is hardly surprising that the Court now expressly sanctions federal appellate review of trial court denials to set aside a jury's compensatory damages award as excessive.⁽²⁹⁵⁾ What is surprising, and equally disturbing, is the Court's requirement that federal trial courts, when sitting in diversity actions, apply state law when reviewing a jury's verdict for excessiveness.⁽²⁹⁶⁾ This decision suggests that, at least for now, the Court will go to great lengths to favor state tort reform measures.⁽²⁹⁷⁾

In responding to fears of runaway juries the Court has undermined a fundamental principle of the Constitution--leaving intact the form of the Seventh Amendment, but eliminating the very functions it was designed to protect.⁽²⁹⁸⁾ This shift in power away from the juries suggests that ordinary citizens no longer serve the vital role in our civil legal system that our Forefathers imagined.⁽²⁹⁹⁾ To be sure, the jury system is not a perfect institution, and progressive reforms may be necessary.⁽³⁰⁰⁾ Nonetheless, whether the Seventh Amendment is unnecessary to protect citizens against exclusion from participation in self-government is a decision that must be made by the people and effected by the legislature, not decreed by the Court.⁽³⁰¹⁾

Amy McCullough^*

1. Jonathan Elliot, 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 544-45 (2d ed. 1836) [hereinafter Elliot's Debates].

2. U.S. Const. amend. VII.

3. For a discussion of the history, development, and interpretation of the Seventh Amendment, see Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639 (1973), and Rachael E. Schwartz, "Everything Depends on How You Draw the Lines": An Alternative Interpretation of the Seventh Amendment, 6 Seton Hall Const. L.J. 599 (1996).

4. 116 S. Ct. 2211 (1996).

5. See id. at 2215.

6. See id.

7. See infra Part II.C.1.

8. See infra Part II.E.

9. See infra Part II.F.

10. See infra Part IV.B.

11. See infra Part IV.

12. See infra Part IV.A-B; see also infra note 85 and accompanying text.

13. See infra notes 19-47 and accompanying text.

14. See infra notes 48-107 and accompanying text.

15. See infra notes 108-55 and accompanying text.

16. See infra notes 156-214 and accompanying text.

17. See infra notes 215-91 and accompanying text.

18. See infra notes 292-301 and accompanying text.

19. See Fed. R. Civ. P. 50, 59, 60.

20. See Charles Alan Wright, The Law of Federal Courts § 95, at 633 (4th ed. 1983) [hereinafter Wright]; see also Fed. R. Civ. P. 59. The purpose of a motion for new trial is to allow the trial court to correct any errors of fact or law that have resulted in an erroneous judgment. See, e.g., Greengrass Enterprises, Inc. v. Rotfeld, 83 F.R.D. 159 (E.D. Pa. 1979); Miller v. Pacific Mut. Life Ins. Co., 17 F.R.D. 121 (W.D. Mich. 1954), aff'd 228 F.2d 889 (6th Cir. 1955). Justifications for granting a new trial include "prejudicial error of law on the part of the court, a verdict which is against the weight of the evidence, [size of] damages awarded . . . or . . . misconduct which has prejudicially affected the jury." Allred v. Maersk Line, Ltd., 826 F. Supp. 965, 969 (E.D. Va. 1993).

21. See Wright, supra note 20, § 95, at 633-34.

22. See 11 Charles Alan Wright et al., Federal Practice and Procedure § 2815, at 159 (2d ed. 1995) [hereinafter Wright, Miller & Kane]. Remittitur is the practice of providing a successful plaintiff with the option of accepting a reduced award in lieu of a new trial. See id. at 160.

23. See Wright, supra note 20, § 95, at 633-35, 637. It is generally deemed to be an error of law when "the verdict exceeds a statutory maximum, is more or less than an undisputed [or admitted minimum or maximum] amount, . . . or where the excessiveness . . . [is] due to other legal error committed at the trial." 6A James Wm. Moore, Moore's Federal Practice ¶ 59.08[6], at 59-168 to 59-169 (2d ed. 1996) [hereinafter Moore]. Other legal errors include "erroneous admission or exclusion of evidence," improper jury instruction, or failure to grant a motion for a new trial when the verdict is clearly against the court's instructions or is the result of jury passion or prejudice. Id. at 59-169 to 59-170.

24. See infra notes 27-41 and accompanying text for a discussion of the historical limitations of federal appellate review; see also Brief of Petitioner at 36, Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211 (1996) (No. 95-719).

25. See infra notes 71-94 and accompanying text for a discussion of the growing trend of federal appellate courts to engage in unlimited review of the size of verdicts.

26. See infra text accompanying notes 48-63; see also Petitioner's Brief at 37, Gasperini (No. 95-719). The Seventh Amendment, while not applicable in the state courts, "is controlling in the federal courts." Slocum v. New York Life Ins. Co., 228 U.S. 364, 377 (1913).

27. For a thorough discussion of the history and background of English common law, the Seventh Amendment, and current review of jury verdicts in the federal system, see Brief of Federal Jurisdiction and Legal History Scholars Akhil Reed Amar et al. as Amicus Curiae in Support of Petitioner at 24, Gasperini v. Center for Humanities, 116 S. Ct. 2211 (1996) (No. 95-719) [hereinafter Amicus Brief]. See generally 3 William Blackstone, Commentaries on the Laws of England, 375-89 (1st ed. 1768) [hereinafter 3 Blackstone, Commentaries]; Wright, Miller & Kane, supra note 22, § 2819, at 204; Maxfield Weisbrod, Limitations on Trial by Jury in Illinois, 19 Chi. Kent L. Rev. 91, 100 (1940).

28. See generally Brief of the Product Liability Advisory Council, Inc. as Amicus Curiae in Support of Respondent at 14-15, Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211 (1996) (No. 95-719) (citing 3 Blackstone, Commentaries, supra note 27, at 30-60); J. H. Baker, An Introduction to English Legal History 44-45 (3d ed. 1990).

29. See Baker, supra note 28, at 44-45; see also Petitioner's Brief at 29-31, Gasperini (No. 95-719). The system was inefficient because jurors and witnesses, as well as the parties to the action, had to travel to Westminster for litigation of disputes. See id. (citing John Marshall Mitnick, From Neighbor-Witness to Judge of Proofs: The Transformation of the English Civil Juror, 32 Am. J. Legal Hist. 201, 213 n.73 (1988)).

30. See Petitioner's Brief at 29, Gasperini (No. 75-719) (citing Mitnick, supra note 29, at 213 n.73); see also Amicus Brief for Respondent at 15, Gasperini (No. 95-719).

31. See 3 Blackstone, Commentaries, supra note 27, at 377; see also Baker, supra note 28, at 156; see also Petitioner's Brief at 30, Gasperini (No. 95-719).

32. See Baker, supra note 28, at 156. See generally Amicus Brief for Respondent at 15-16 (citing William Renwick Riddell, New Trial at the Common Law, 26 Yale L.J. 49, 50-57 (1916)).

33. See Weisbrod, supra note 27, at 92; cf. Fleming James Jr., Remedies for Excessiveness or Inadequacy of Verdicts: New Trial on Some or All Issues, Remittitur and Additur, 1 Duq. L. Rev. 143, 144 (1963) (acknowledging that courts were reluctant to interfere with jury verdicts based on claims of excessiveness) (footnote omitted).

34. Wright, supra note 20, at 639; see also United States v. Wonson, 28 F. Cas. 745, 748 (C.C.D. Mass. 1812) (No. 16,750) (finding that motions for a new trial were granted only if the trial judge could convince his peers that the verdict was improper and a new trial was in order); Weisbrod, supra note 27, at 92 ("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."); Harold Chesnin & Geoffrey C. Hazard Jr., Chancery Procedure and the Seventh Amendment: Jury Trial of Issues in Equity Cases Before 1791, 83 Yale L.J. 999, 1000 (1974) (suggesting that "in 1791, the [British] Court of Chancery did not usually exercise authority to resolve contested issues of fact and seemingly did not regard itself as competent to do so"). But see generally Respondent's Brief at 8-26, Gasperini (No. 95-719) (citing James, supra note 33, at 143 & n.1 (contending that, because motions for new trial were heard by the en banc court at Westminster, rather than by the nisi prius judge, this system of review is analogous to the current American system of appellate review and supports the view that the practice of appellate review of verdicts as being excessive existed in the common law); William W. Blume, Review of Facts in Jury Cases--The Seventh Amendment, 20 J. Am. Jud. Soc. 130, 131 (1936); Case Note, Federal Courts--Review by Courts of Appeal, 65 Harv. L. Rev., 1064, 1065 (1951)); cf. Baker, supra note 28, at 156-58 (noting that the en banc court at Westminster, together with the nisi prius judge, entered judgment in a case, and once judgment was entered it was considered final). Compare generally Petitioner's Brief, Gasperini (No. 95-719) and Amicus Brief, Gasperini (No. 95-719) (citing Charles Alan Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 752, 762-63 (1957) (maintaining that only the trial court had the power to set aside a jury's determination of damages, absent any legal error), and Wright, Miller & Kane, supra note 22, § 2819, at 204 (arguing that appellate review of damages was prohibited at common law)), with Respondent's Brief, Gasperini (No. 95-719), and Amicus Brief for Respondent at 7-24, Gasperini (No. 95-719) (citing Riddell, supra note 32, at 57 (asserting the existence of appellate review of excessive damage claims), and James, supra note 34, at 143-44 (same)).

35. See Petitioner's Brief at 28, Gasperini (No. 95-719) (citing 3 Blackstone, Commentaries, supra note 27, at 387-88).

36. See supra note 34.

37. See 3 Blackstone, Commentaries, supra note 27, at 375-76, 387-88; see also Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 353-54 (4th Cir. 1941) (noting that the trial judge has not only the right, but the duty, to set aside a verdict if he believes it to be unsatisfactory).

38. See Petitioner's Brief at 27, Gasperini (No. 95-719) (citing 3 Blackstone, Commentaries, supra note 27, at 375-394).

39. Id. at 405-06; see also Petitioner's Brief at 27, Gasperini (No. 95-719). Regardless of the confusion surrounding the nature of appellate review, see supra note 35, it is clear that neither the trial judge nor the en banc court could determine the proper amount of damages. See 3 Blackstone, Commentaries, supra note 27, at 388-91. The remedy for an improper jury verdict was a trial by another jury. See id.; see also Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 478 (1830);

40. See Parsons, 28 U.S. at 480-81.

41. See infra notes 46, 47 and accompanying text.

42. See The Federalist No. 83, at 521-22 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1966); see also Forrest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution 85 (1985) ("[T]he notion that the judges should be so independent as to have power to overrule juries . . . was alien to American theory and practice."); Elliot's Debates, supra note 1, at 545; J. Wilson Parker, Free Expression and the Function of the Jury, 65 B.U. L. Rev. 483, 497 (1985) (explaining that several of the "historic reasons for the popularity of juries [were] the hatred of colonial despotism, . . . a general distrust of legal experts, and the primacy of natural justice").

43. See Judiciary Act of 1789, ch. 20, 1 Stat. 73, 84-85 (1789). The Judiciary Act of 1789 expressly provided that appellate review was limited to writs of error. See id.; see also Patrick E. Higginbotham, Observation, Continuing the Dialogue: Civil Juries and the Allocation of Judicial Power, 56 Tex. L. Rev. 47, 48-50 (1977). Political debates surrounding the adoption of the Judiciary Act of 1789 exhibited concern that the "elimination of the jury would result in a shift of power . . . to the appellate courts." Parker, supra note 42, at 499 (citing Higginbotham, supra, at 50). These debates illustrated the importance of the relationship "between the role of the civil jury and the scope of federal appellate jurisdiction to review matters of fact." Higginbotham, supra, at 49; see also Parker, supra note 42, at 499.

44. See generally Elliot's Debates, supra note 1, at 545; Parker, supra note 42, at 498 ("A principal objection to adoption [of the Constitution] was that the Constitution failed explicitly to safeguard jury trials in civil actions."); see also United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750). Justice Story noted that a great concern with the Constitution at the time of its ratification, was the appellate jurisdiction of the Supreme Court that "would enable that court, with or without a new jury, to re-examine the whole facts, which had been settled by a previous jury." Id. at 750.

45. See Parker, supra note 42, at 498.

46. See U.S. Const. amend. VII ("[N]o 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."); see also Wonson, 28 F. Cas. at 750 ("[T]he common law here alluded to is not the common law of any individual state . . . but it is the common law of England, the grand reservoir of all our jurisprudence."); Dimick v. Schiedt, 293 U.S. 474, 487 (1935) (explaining that the Seventh Amendment "in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791"); Elliot's Debates, supra note 1, at 544 (explaining that facts found by a jury could not be appealed in the common law because the "unanimous verdict of twelve impartial men [could not] be reversed"); Parker, supra note 42, at 486-87 ("The question of citizen control versus judicial control embodies the significance of the law/fact distinction. This distinction in the allocation of power between citizens and judicial officials lies at the heart of the [S]eventh [A]mendment . . . .").

47. Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593, 596 (1897); see also Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446 (1830) (interpreting the Seventh Amendment as providing for review of jury findings only as was previously known under the common law).

48. See Wright, Miller & Kane, supra note 22, § 2820, at 208. Despite conflicting accounts regarding appellate review in English common law, see supra note 34, it is clear that in the American litigation system, the range of appellate review did not include review of the size of damages. See Moore, supra note 23, ¶ 59.08, at 59-160 n.8 (citations omitted).

49. See Wright, Miller & Kane, supra note 22, § 2815, at 162; see also Eric Schnapper, Judges Against Juries-Appellate Review of Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237, 239; Capital Traction Co. v. Hof, 174 U.S. 1, 8 (1899); Kennon v. Gilmer, 131 U.S. 22, 29 (1889) (explaining that the district court judge can order remittitur or a new trial).

50. See Wright, Miller & Kane, supra note 22, § 2815, at 160; see also Dimick v. Schiedt, 293 U.S. 474 (1935); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481 (1933); Southern Ry.-Carolina Div. v. Bennett, 233 U.S. 80, 87 (1914) ("[A] mere excess upon the evidence is a matter to be dealt with by the trial court. It does not present a question for re-examination here upon a writ of error."); Metropolitan R.R. Co. v. Moore, 121 U.S. 558, 574-75 (1887); Railroad Co. v. Fraloff, 100 U.S. 24, 31-32 (1879); Insurance Co. v. Folsom, 85 U.S. (18 Wall.) 237, 248-49 (1873); Myra Foundation v. United States, 267 F.2d 612, 614 (8th Cir. 1959) ("[T]he remedy for excessive or inadequate verdicts is by motion for new trial and [] the ruling of the trial court on such motion will not be reviewed by this [appellate] Court."); St. Louis Southwestern Ry. Co. v. Ferguson, 182 F.2d 949, 954 (8th Cir. 1950) (explaining that a motion for new trial based on amount of damages was within the sole discretion of the trial court); Sanders v. Leech, 158 F.2d 486, 487 (5th Cir. 1946) (noting that the restriction on appellate court review of questions of excessiveness or insufficiency in jury cases, "has always been and still is . . . because of the [Seventh] Amendment, an absolute rule"); Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir. 1941) (explaining that the "granting or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal, save in the most exceptional circumstances"); Donahoo v. Turner Constr. Co., 833 F. Supp. 621, 623 (E.D. Mich. 1993) (citation omitted) (stating that granting a new trial because of the size of the verdict is a "procedural matter which lies within discretion of district court").

51. See Moore, supra note 23, ¶ 59.08, at 59-165 to 59-167; see also supra notes 38-41 and accompanying text.

52. See Moore, supra note 23, ¶ 59.08, at 59-166 to 59-167; Wright, Miller & Kane, supra note 22, § 2815, at 162 (citing Overseas Private Inv. Corp. v. Metropolitan Dade County, 826 F. Supp. 1564, 1568 (D.C. Fla. 1993), aff'd in part, rev'd in part on other grounds, 47 F.3d 1111 (11th Cir. 1995)).

53. See Moore, supra note 23, ¶ 59.08, at 59-166; see also supra note 43 and accompanying text.

54. See Moore, supra note 23, ¶ 59.08, at 59-167; see also Metropolitan R.R. Co. v. Moore, 121 U.S. 558, 574 (1887); Kennon v. Gilmer, 131 U.S. 22, 28-29 (1889).

55. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830); see also Amicus Brief for Respondent at 13-14, Gasperini (No. 95-719).

56. See Wright, Miller & Kane, supra note 22, § 2820, at 207-20; Moore, supra note 24, 59.08, at 59-167; Schnapper, supra note 49, at 243 & n.33 (citing Texas & Pac. Ry. Co. v. Hill, 237 U.S. 208, 215 (1915); Phoenix Ry. v. Landis, 231 U.S. 578, 587 (1913); Herencia v. Guzman, 219 U.S. 44, 45 (1910)); see also City of Lincoln v. Power, 151 U.S. 436, 437-38 (1894); Insurance Co. v. Folsom, 85 U.S. (18 Wall.) 237, 248-49 (1873) ("Facts found by a jury could only be re-examined under the rules of the common law. . . . Nothing, therefore, is open to re-examination in this case . . . . ").

57. See, e.g., Dimick v. Schiedt, 293 U.S. 474, 486 (1935); St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648, 661 (1915); Baylis v. Travellers' Ins. Co., 113 U.S. 316, 320-21 (1885).

58. Wright, Miller & Kane, supra note 22, § 2820, at 208 (quoting Metropolitan R.R. Co. v. Moore, 121 U.S. 558, 574 (1887)).

59. Railroad Co. v. Fraloff, 100 U.S. 24, 31-32 (1879) (citations omitted); see also Wabash Ry. 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 . . . .") (emphasis added) (citation omitted).

60. Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 481 (1933)). In Fairmount, the plaintiff was awarded one dollar in damages. See id. at 477. The trial judge denied a motion for new trial based on the amount of damages. See id. at 478. The appellate judge reversed and ordered a new trial unless the parties agreed to an amount of $18,500. See id. at 479. The Supreme Court reversed the appellate court and reinstated the district court's decision. See id. at 486. The Court held that neither the Court of Appeals nor the Supreme Court should review a district court's denial of a motion for new trial based on insufficiency of the damages award. See id. at 482; see also Wright, Miller & Kane, supra note 22, § 2815, at 208; Wright, supra note 20, at 637.

61. See Fairmount, 287 U.S. at 481.

62. See Wright, Miller & Kane, supra note 22, § 2820, at 208-09, 218 n.29 (citing Herring v. Luckenbach S.S. Co., 137 F.2d 598, 599 (1943) ("[I]n the federal practice such power [of remittitur] is limited to the trial courts . . . and appellate courts act in general only where an improper excess is clearly ascertainable from the record.")); see also Wright, supra note 20, at 637 (citing Scott v. Baltimore & O. R.R. Co., 151 F.2d 61, 64 (3d Cir. 1945) (explaining that, although the judges thought the verdict was too high, there was nothing that they could do about it because control of the jury's verdict was for the trial court)).

63. Scott, 151 F.2d at 65 (citations omitted).

64. See Martin B. Louis, Allocating Adjudicative Decision Making Authority Between the Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge/Jury Question, and Procedural Discretion, 64 N.C. L. Rev. 993, 994 n.7 (1986).

65. Union Mechling Corp. v. Carmadelle, 624 F.2d 677, 679 (5th Cir. 1980).

66. Perfect Fit Industries, Inc. v. Acme Quilting Co., 494 F. Supp. 505, 509 (S.D.N.Y. 1980).

67. See Moore, supra note 23, ¶ 59.08, at 59-160 to 59-162. The "shocks the conscience" standard is the federal standard of review for excessiveness of compensatory damages. See Wright, Miller, & Kane, supra note 22, § 2815, at 162 & n.7 (citing Allred v. Maersk Line, Ltd., 826 F. Supp. 965, 971 (E.D. Va. 1993) (stating that the standard for determining whether remittitur was appropriate was one of "shocks the conscience")).

68. Henry v. Hess Oil Virgin Islands Corp., 163 F.R.D. 237, 243 (D. St. Croix 1995) (citing Dunn v. Hovic, 1 F.3d 1362, 1367 (3d Cir. 1993)).

69. Id. (citing Gumbs v. Pueblo, 823 F.2d 768, 773 (3d Cir. 1987)).

70. See Dunn v. Consolidated Rail Corp., 890 F. Supp. 1262, 1287 (M.D. La. 1995); Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991); see also Cygnar v. City of Chicago, 865 F.2d 827, 847 (7th Cir. 1989) (stating that, traditionally, a jury's damage award must be "monstrously excessive, a product of passion and prejudice," or have no rational connection to the evidence to warrant judicial relief).

71. See Wright, Miller & Kane, supra note 22, § 2820, at 209 (citations omitted); see also Steven Alan Childress, Judicial Review and Diversity Jurisdiction: Solving an Irrepressible Erie Mystery?, 47 SMU L. Rev., 271, 272-319 (1994).

72. See id. Although the expansion of federal appellate review was largely predicated upon Supreme Court dicta, some suggest that the revision of the Judicial Code in 1948 also lent some influence. See Amicus Brief at 24, Gasperini (No. 95-719). The Judicial Code was first adopted to bring unity to procedures of the federal court system. See generally Felix Frankfurter & James M. Landis, The Business of the Supreme Court 144-45 (1928). In 1948, the language prohibiting appellate review of facts was omitted from the original version of the Judicial Code. See 28 U.S.C. § 2105 (1948). The omitted portion of the code provided, in relevant part, that "[t]here shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters." Id. The legislative history does not suggest an intent to "authorize appellate weight-of-the evidence review in common-law cases tried to a jury." Amicus Brief, supra, at 27. The Revision Notes for the 1948 Act indicate that the reference to "no reversal . . . for error in fact" was dropped solely "to avoid any construction that matters of fact are not reviewable in nonjury cases." 28 U.S.C. § 2105 (1948); see also Amicus Brief, supra, at 27. Nonetheless, the omission of the term "for error in fact" may have influenced the view that, by removing the relevant language, Congress had authorized appellate review of allegedly excessive jury verdicts. See Amicus Brief, supra, at 27.

73. Affolder v. New York, C. & St. L. R.R. Co., 339 U.S. 96, 101 (1950) (citations omitted).

74. See id. at 96; see also Wright, Miller & Kane, supra note 22, § 2820, at 210 (stating that the opinion was "otherwise devoted entirely to substantive issues").

75. See Wright, Miller & Kane, supra note 22, § 2820, at 210.

76. See id. at 209-10.

77. See id.; see also Fed. R. Civ. P. 59. Rule 59, which governs review of district court decisions, does not dictate a standard for review. See id.

78. See Wright, Miller & Kane, supra note 22, § 2820, at 209 (citing, e.g., Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989); Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961) ("If we reverse, it must be because of an abuse of discretion. If the question of excessiveness is close or in balance, we must affirm."); Klein v. Hollings, 992 F.2d 1285, 1289-90 (3d Cir. 1993); Franks v. Associated Air Center, Inc., 663 F.2d 583, 590 (5th Cir. 1981); Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 511 F.2d 839, 846 (4th Cir. 1975); Galard v. Johnson, 504 F.2d 1198, 1199 (7th Cir. 1974); Ward v. Buehler, 472 F.2d 1170, 1171 (5th Cir. 1973) ("Assessment of damages is an uncertain art at best, and in the absence of a clear abuse of discretion in either direction, we [the court of appeals] must abide the jury's measure."); Stafford v. Perini Corp., 475 F.2d 507, 512 (1st Cir. 1973); White Motor Corp. v. Stewart, 465 F. 2d 1085, 1090 (10th Cir. 1972); Humble v. Mountain State Constr. Co., 441 F.2d 816, 820 (6th Cir. 1971); Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 446-47 (8th Cir. 1961); Boston & Maine R.R. v. Talbert, 360 F.2d 286, 291 (1st Cir. 1966); Hulett v. Brinson, 229 F.2d 22, 25 (D.C. Cir. 1955) (footnote omitted)); see also Petitioner's Brief at 40-49, Gasperini (No. 95-719).

79. See Wright, Miller & Kane, supra note 22, § 2820, at 212 n.23, 214 (citing, e.g., Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982) (advising that appellate courts should be "exceedingly hesitant" to reverse a trial judge's decision to uphold a jury's assessment of damages); Pellegrin v. J. Ray McDermott & Co., 504 F.2d 884, 885 (5th Cir. 1974) (instructing that the grant or denial of a new trial on claim of excessive damages was "a matter of discretion with the trial court, not subject to review except for grave abuse of discretion"); Novak v. Gramm, 469 F.2d 430, 434 (8th Cir. 1972) (stating that a trial court's denial of a motion for new trial based on excessive damages will not be reversed "except in those rare cases in which there is plain injustice or a monstrous or shocking result"); Boston & Maine R.R. v. Talbert, 360 F.2d 286, 291 (1st Cir. 1966) (explaining its reluctance to interfere with the trial court's decision unless the size of the jury's verdict was "shocking")).

80. E.g., Hughes v. Mobil Oil Corp., 421 F.2d 1248, 1249 (5th Cir. 1970); see also Wright, Miller & Kane, supra note 22, § 2820, at 215 n.25.

81. E.g., Ganapolsky v. Park Gardens Dev. Corp., 439 F.2d 844, 846 (1st Cir. 1971); see also Wadsworth v. Clindon, 846 F.2d 265, 266 (4th Cir. 1988); Wright, Miller & Kane, supra note 22, § 2820, at 215 n.25.

82. See Locke v. Atchison, Topeka & Sante Fe Ry. Co., 309 F.2d 811, 817 (10th Cir. 1962).

83. See Dupont v. Southern Pac. Co., 366 F.2d 193, 198 (5th Cir. 1966).

84. See infra text accompanying notes 92-104; see also Childress, supra note 71 at 289 & n.43.

85. See infra notes 90-92 and accompanying text; see also John J. Cannon, Can a Federal Appellate Court Overturn a Federal Jury's Damages Award Because It Is Excessive? If It Can, What Is the Measure of Excessiveness?, Preview of United States Supreme Court Cases, Apr. 4, 1996, available at WL 1995-96 Preview 344, 346-47.

86. See Cannon, supra note 85, at 347 (citing Consorti v. Armstrong World Industries, Inc., 64 F.3d 781 (2d Cir. 1995), republished in 72 F.3d 1003, 1013 (2d Cir. 1995) (applying New York's "deviates materially standard"); Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d 492, 502 (1st Cir. 1994) (applying New Hampshire law, which requires the verdict to be "one no reasonable jury could return"); Roboserve, Ltd. v. Tom's Foods, Inc., 940 F.2d 1441, 1446 (11th Cir. 1991) (stating that the court must look to state law "to determine whether the verdict is excessive," but must look to federal law when reviewing the trial court's "decision to order a new trial as the result of an excessive verdict"); Vanskike v. Union Pacific R.R. Co., 725 F.2d 1146, 1150 (8th Cir. 1984); Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 237 n.2 (7th Cir. 1983); Quality Foods, Inc. v. U.S. Fire Ins. Co., 715 F.2d 539, 542 n.2 (11th Cir. 1983) (explaining that state law controls whether a jury's verdict is excessive; yet, federal law determines whether a new trial should be granted); Humble v. Mountain State Constr. Co., 441 F.2d 816, 820 (6th Cir. 1971) (applying state law to determine whether the damages were excessive; using federal law, with some reliance on prior state decisions, to determine whether the trial court abused its discretion)).

87. See Cannon, supra note 85, at 347 (citing Consorti, 72 F.3d at 1013). The Second Circuit now applies New York's "deviates materially" standard. Gasperini v. Center for Humanities, 66 F.3d 427, 430 (2d Cir. 1995). Prior to 1986, New York applied the federal standard of "shocks the conscience." Id.

88. See Cannon, supra note 85, at 347 (citing Laubach v. Khajawai, 64 F.3d 657 (4th Cir. 1995), 1995 WL 508879, at *2.; Mayer v. Gary Partners and Co., Ltd., 29 F.3d 330, 335 (7th Cir. 1994); Lakin v. Daniel Marr & Son Co., 732 F.2d 233, 235 (1st Cir. 1984); Blaskey v. Wheatley Trucking, Inc. 482 F.2d 497, 498 (6th Cir. 1973)).

89. Cannon, supra note 85, at 347 (quoting Laubach, 1995 WL 508879, at *2).

90. See Cannon, supra note 85, at 347 (citing Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1189-90 (2d Cir. 1992) (neglecting to decide which standard should apply because the verdict was excessive under either standard)); see also In re Air Crash Disaster Near New Orleans, LA., 767 F.2d 1151, 1155-56 (5th Cir. 1985) (suggesting that federal law governs review of the size of jury awards; yet ultimately deciding that the damages awarded were excessive under both the Louisiana and federal "shock the judicial conscience" standards).

91. The federal standard is "shocks the conscience." Cannon, supra note 85, at 346. Some states have adopted the same standard. See Peoples Bank and Trust Co. v. Globe Int'l. Publ'g., Inc., 978 F.2d 1065, 1070-71 (8th Cir. 1992) ("Under Arkansas law . . . a reviewing court must decide whether the award is so great that it shocks the conscience of the court or demonstrates that the trier of fact was motivated by passion or prejudice.").

The First, Third, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh Circuit Courts of Appeal apply a "shocks the conscience" standard when reviewing a jury's verdict as being excessive. See Marcia Coyle, Tort Reform Tries One More Time, Supreme Court Will Hear a Photographer's Case that May End Verdict Reductions, Nat'l L.J., Apr. 22, 1996, at A1;. see, e.g., Black v. Ryder/P.I.E. Nationwide, Inc., 970 F.2d 1461, 1470 (6th Cir. 1992); Redd v. City of Pheonix City, 934 F.2d 1211, 1215 n.3 (11th Cir. 1991); Wierstak v. Heffernan, 789 F.2d 968, 974 (1st Cir. 1986); Malik v. Apex Int'l. Alloys, Inc., 762 F.2d 77, 81 (10th Cir. 1985); Rocco v. Johns-Manville Corp., 754 F.2d 110, 114 (3d Cir. 1985); Clark v. Taylor, 710 F.2d 4, 13 (1st Cir. 1983); Murray v. Fairbanks Morse, 610 F.2d 149, 152-53 (3d Cir. 1979); Felder v. United States, 543 F.2d 657, 663-64 (9th Cir. 1976); Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 439 (8th Cir. 1961).

92. Wright, supra note 20, § 95, at 639.

93. Murray v. Fairbanks Morse, 610 F.2d 149, 152 (3d Cir. 1979).

94. Kinsey v. Salado Indep. School Dist., 916 F.2d 273, 281 (5th Cir. 1990).

95. See Cannon, supra note 85, at 346.

96. 116 S. Ct. 2211 (1996).

97. See Cannon, supra note 85, at 346 (citing Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989); Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159 (1968); Neese v. Southern Ry. Co., 350 U.S. 77, 77 (1955)).

98. 350 U.S. 77 (1955); see also Wright, Miller & Kane, supra note 22, § 2820, at 211.

99. See Neese, 350 U.S. at 78; see also Wright, Miller & Kane, supra note 22, § 2820, at 211.

100. See Neese, 350 U.S. at 77; see also Wright, Miller & Kane, supra note 22, § 2820, at 211.

101. 393 U.S. 156 (1968).

102. See Grunenthal, 393 U.S. at 157; see also Wright, Miller & Kane, supra note 22, § 2820, at 211. In Grunenthal, the defendant moved to set aside the jury's compensatory damages award as excessive. See id. The trial judge denied the motion, upholding the jury's verdict. See id. The defendant appealed the denial to the court of appeals, which ordered a remittitur or new trial. See id.

103. Grunenthal, 393 U.S. at 158; see also Wright, Miller & Kane, supra note 22, § 2820, at 211. However, Justice Harlan, dissenting, was "'at an utter loss to understand how the Court manage[d] to review the District Court's decision and find it proper while at the same time proclaiming that it has avoided decision of the issue whether appellate courts ever may review such actions.'" Wright, Miller & Kane, supra note 22, § 2820, at 211 (quoting Grunenthal, 393 U.S. at 163 (Harlan, J., dissenting)).

104. See Grunenthal, 393 U.S. at 157 n.3.

105. 492 U.S. 257 (1989); see also Wright, Miller & Kane, supra note 22, § 2820, at 212.

106. See Browning-Ferris, 492 U.S. at 257. The main issue presented to the Court was whether the jury's punitive damages award violated the Excessive Fines Clause of the Eighth Amendment. See id. at 260.

107. See Wright, Miller & Kane, supra note 22, § 2820, at 212 & n.22 (citing Browning-Ferris, 492 U.S. at 279 n.25).

108. See infra Part III.C.

109. Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2215 (1996).

110. See id. at 2215.

111. See id. at 2215-16.

112. See id. at 2216.

113. See id. at 2216 n.1 (Gasperini is a citizen of California; the Center is incorporated and has its principal place of business in New York).

114. Id. at 2216.

115. See Gasperini, 116 S. Ct. at 2216.

116. Id. Gasperini presented an expert witness who testified that the industry standard valued lost slide transparencies at $1500.00 each. See id. This standard represented "the average license fee a commercial photograph could earn over the full course of the photographer's copyright, i.e. . . . [Gasperini's] lifetime plus 50 years." Id.

117. See id. The jury awarded compensatory damages of $1500 per slide. See id.

118. See id.; see also Fed. R. Civ. P. 59.

119. See Gasperini, 116 S. Ct. at 2216.

120. See id.

121. Gasperini v. Center for Humanities, Inc., 66 F.3d 427, 428 (2d Cir. 1995). The Center asserted that no industry standard existed under New York law. See id. (citations omitted).

122. See id. at 428-29.

123. See id. at 429.

124. See id.

125. See id. at 430 (citing Consorti v. Armstrong World Indus., Inc., 64 F.3d 781 (2d Cir. 1995), republished in 72 F.3d 1003 (2d Cir. 1995) (representing Second Circuit precedent for the proposition that New York's standard should be applied).

126. Gasperini, 66 F.3d at 430 (quoting N.Y. C.P.L.R. 5501(c) (McKinney Supp. 1995).

127. See id. at 431. The court explained that several New York Appellate Division reviews of jury verdicts in similar actions for recovery of missing photographic transparencies have resulted in a reduction in the size of the award. See id. The reductions were based on a lack of evidence establishing uniqueness of the transparencies or the photographer's earning potential from the transparencies. See id. Gasperini earned only $10,000 from these slides between 1984 and 1993. See id. at 428.

128. Id. at 429.

129. Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2216 (1996) ("Gasperini's expert witness testified that the "industry standard" within the photographic publishing community valued a lost transparency at $1,500.").

130. Gasperini, 66 F.3d at 431.

131. Gasperini, 116 S. Ct. at 2217; see also Gasperini, 66 F.3d at 431. The Second Circuit surveyed other New York state appellate decisions and determined that a verdict of $450,000 `exceeded' the "outer bounds of what a jury may reasonably award" under New York law. Gasperini, 66 F.3d at 430-31.

132. See Gasperini, 116 S. Ct. at 2217.

133. See id. at 2217 ("This case presents an important question regarding the standard a federal court uses to measure the alleged excessiveness of a jury's verdict . . . .").

134. See id. at 2215. Justice Ginsberg delivered the majority opinion, in which Justices O'Connor, Kennedy, Souter and Breyer joined. See id. Justice Scalia filed a dissenting opinion, in which Chief Justice Rehnquist and Justice Thomas joined. See id. at 2230. Justice Stevens filed a separate dissenting opinion. See id. at 2225.

135. See id. at 2215.

136. See id. The abuse of discretion standard appears to be well settled among the courts; most appellate courts will not reverse without a strong showing of abuse of discretion. See supra note 78 and accompanying text.

137. See id. at 2215.

138. See Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2215 (1996).

139. See id. at 2225. Although Justice Stevens agreed with the majority's analysis, he argued that the Second Circuit's decision should be affirmed. See id. at 2225-30 (Stevens, J., dissenting).

140. See Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938); Gasperini, 116 S. Ct. at 2219-22 (discussing the development and application of the Erie doctrine). Erie supplied the initial test for determining choice of law in diversity actions. See id. Erie provides that, in federal diversity actions, courts must apply federal procedural law and state substantive law. See id. at 2219. To determine whether a law is procedural or substantive, one of Erie's early progeny, Guaranty Trust Co. v. York, 326 U.S. 99 (1945), advanced an "outcome-determinative" test. Guaranty, 326 U.S. at 109. Under Guaranty Trust, if application of federal law would significantly affect the outcome of the litigation, then state law would apply. See id. Later, in Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525 (1958), the Court set out a balancing test. See id. at 537-39. The Byrd Court had to decide whether, in a diversity action, a state policy that allowed a judge to decide factual issues should be applied over the federal right to a trial by jury. See id. Because there was no federal rule or statute on point, the Court balanced federal interests against competing state interests to determine that the federal right to a jury should apply. See id. at 537-39. Subsequently, Hanna v. Plumer, 380 U.S. 460 (1965), the most recent of the Erie progeny, modified the "outcome determinative" test of Guaranty Trust by supplying a "twin aims" approach. Id. at 468. The Hanna decision requires that both "'discouragement of forum shopping and avoidance of inequitable administration of the laws'" be met to apply the state law. Gasperini, 116 S. Ct. at 2220 (quoting Hanna, 380 U.S. at 468). Hanna involved a state law in conflict with a federal rule of civil procedure, which had been promulgated by the Rules Enabling Act (REA). See Hanna, 380 U.S. at 461, 464. The Hanna Court interpreted the REA, which governs practice in the federal system, as providing that if a federal law is arguably procedural and does not "abridge, enlarge or modify" existing state substantive law, then the federal law should be applied. Id. at 464; see also 28 U.S.C. § 2072 (1994). For a detailed discussion of the Erie doctrine, see generally Wright, Miller & Kane, supra note 22, § 4511, at 175-189, and Childress, supra note 71.

141. See Gasperini, 116 S. Ct. at 2219.

142. See id. at 2220. The Court held that, although part of CPLR 5501(c) was procedural, the legislative intent of CPLR 5501(c) was substantive in nature, and thus, the New York statute should be deemed substantive. See id. at 2220-21.

143. See id. at 2219-21.

144. See id. at 2221; see also supra note 156.

145. Id. at 2224 (footnote omitted).

146. See id. at 2221.

147. Gasperini, 116 S. Ct. at 2223.

148. See id. at 2224-25. The majority utilized the Erie doctrine to determine that the state standard ("deviates materially") was the proper standard of review at the trial level, yet turned to the Seventh Amendment to find that the federal standard ("abuse of discretion") was the proper standard of review at the appellate level. See id.

149. Id. at 2230 (Scalia, J., dissenting).

150. See id. at 2230-39 (Scalia, J., dissenting). Justice Scalia contended that the Seventh Amendment prohibited any review of a fact found by a jury other than as provided by common law. See id. at 2230-32. At common law, no review could be had other than that for error of law, thus, the review by the Second Circuit should not be upheld. See id. at 2234.

151. See id. at 2239 (Scalia, J., dissenting). Erie provides that "[e]xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Therefore, according to Justice Scalia, Rule 59, which controls motions for new trial, was "`sufficiently broad'" to conflict with the state law, "'leaving no room for [] operation of [state] law.'" Gasperini, 116 S. Ct. at 2239 (Scalia, J., dissenting) (quoting Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 4-5 (1987) (citation omitted)). The dissent also contended that the New York standard was procedural and charged the majority with "commit[ing] the classic Erie mistake of regarding whatever changes the outcome as substantive." Id. at 2238; see also Barker, infra note 161, at 3-4 (discussing Scalia's dissent).

152. See Gasperini, 116 S. Ct. at 2231 (Scalia, J., dissenting).

153. Id. at 2240 (Scalia, J., dissenting).

154. See id. at 2231, 2240 (Scalia, J., dissenting).

155. Id. at 2240 (Scalia, J., dissenting).

156. 28 U.S.C. § 1652 (1994) (emphasis added).

157. Id. (emphasis added). Contrary to Justice Scalia's contention that Rule 59 ousts applicability of the state standard, see supra note 151, Rule 59 does not provide a standard for review. See supra note 77.

158. See U.S. Const. amend. VII.

159. See supra note 67 and accompanying text.

160. See supra notes 48-56 and accompanying text (discussing review under common law).

161. See Marcia Coyle, New Jury Verdict Role for Courts: Supreme Court's Gasperini and BMW Rulings Expand Excessive Damages Reviews, Nat'l L.J., July 8, 1996, at A22 (comments of Professor Erwin Chermerinsky) (opining that the Court's analysis is confusing).

Adequate consideration of whether the majority correctly applied an Erie analysis is beyond the scope of this Comment. Rather, this Comment questions whether the majority was correct in applying an Erie analysis and contends that Seventh Amendment jurisprudence compels an outcome different than the one the majority reached. Nonetheless, the Court's Erie analysis has been criticized. See Floyd, Erie Awry: A Comment on Gasperini v. Center for Humanities, Inc., 1997 BYU L. Rev. 267 (1997); Robert A. Barker, Construing State Statutes in Diversity Cases, 216 N.Y. L.J. 3 (1996); Leading Cases, 110 Harv. L. Rev. 256, 261-66 (1996) (observing that the majority's reliance on the twin aims approach conflicts with modern Erie trends). To illustrate, the majority did not apply the balancing test set out in Byrd v. Blue Ridge Rural Electric Coop., Inc., 356 U.S. 525 (1958), in determining which standard a federal district court must apply when reviewing a jury's verdict for excessiveness. See Leading Cases, supra, at 265. The majority follows an "outcome determinative" approach. See Gasperini, 116 S. Ct., at 2222. The majority attempts to clear this analytical hurdle by contending that the issue in Byrd was the first clause of the Seventh Amendment, whereas the issue in Gasperini is the second clause of the Seventh Amendment. See id.; see also Leading Cases, supra, at 265. The Erie analysis in Gasperini is confusing because the majority refers to Byrd's balancing test only when discussing the standard of review appellate courts must use when reviewing district court decisions--after the majority has already determined that the state standard applies to district court review of jury verdicts. See id. The Harvard Law Review article concludes that the Court's analysis "adds confusion to an already perplexing area of legal doctrine and casts doubt on the validity of recent Erie jurisprudence." Id. at 262 (footnotes omitted); Barker, supra, at 3 (suggesting that the Court's Erie analysis resurrects the outcome determinative test of Guaranty Trust Co. v. York, 326 U.S. 99 (1945)); Floyd, supra, at 303 (suggesting that the Court's analysis confuses the continued validity of Byrd); see also Gasperini, 116 S. Ct. at 2229 (Stevens, J., dissenting). Justice Stevens stated:

The majority's persuasive demonstration that New York law [is] . . . substantive . . . seems to refute the contention that New York has merely asked appellate courts to reexamine facts. The majority's analysis would thus seem to undermine the conclusion that the Reexamination Clause is relevant . . . . [O]ur decision in Byrd does not make the Clause relevant.

Id. (citation omitted).

162. See infra notes 216-27 and accompanying text.

163. See infra Part IV.A.

164. See infra Part IV.B.

165. Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2223 (1996) (citations omitted).

166. Lumbermen's Mut. Cas. Co. v. Elbert, 348 U.S. 48, 53 n.5 (1954).

167. See Dimick v. Schiedt, 293 U.S. 474 (1935); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474 (1933); St. Louis, Iron Mountain & S. Ry. Co. v. Craft, 237 U.S. 648 (1915); Lincoln v. Power, 151 U.S. 436 (1894); Metropolitan R.R. Co. v. Moore, 121 U.S. 558 (1887); Wabash Ry. Co. v. McDaniels, 107 U.S. 454 (1883); Railroad Co. v. Fraloff, 100 U.S. 24 (1879); Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830).

168. Interpretation of the purpose of the Seventh Amendment turns on those rights established under the common law in 1791. See Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 478-80 (1830); see also Cannon, supra note 85 at 345 (citations omitted).

169. See Floyd, supra note 161, at 301. The Erie question comes into play when determining whether the trial court erred by not applying the New York statute when reviewing the verdict for excessiveness. The majority in Gasperini maintained that the question of damages was subject to review for legal error because the New York statute is analogous to a statutory cap. See Gasperini, 116 S. Ct. at 2217-19. In other words, if the trial judge upheld a verdict that exceeded the amount allowed by the statute, the judge commited an error of law that is reviewable by the appellate court. See id. Justice Stevens clarified that it does not matter that the New York legislature chose not to specify a cap on damages in the statute, instead allowing the cap to be judicially determined; in reality, it is a statutory cap on damages. See id. at 2225-26 (Stevens, J., dissenting). Justice Scalia contended that the New York statute does not place a maximum on compensatory damages, it simply sets a guideline. See id. at 2237-38 (Scalia, J., dissenting). Therefore, according to Justice Scalia, review of the Gasperini trial court's denial of the motion to set aside the verdict or grant a new trial was inappropriate. See id.

170. 293 U.S. 474 (1935).

171. See id. at 476-77. The issue of additur (increasing an inadequate verdict) is inapposite to the issue of remittitur (decreasing an excessive verdict). See Black's Law Dictionary 38, 1295 (6th ed. 1990). The Dimick decision illustrates that when the Court was first faced with the issue of appellate practice of overturning jury verdicts, the Court looked to the language and purpose of the Seventh Amendment and English common law to determine the constitutionality of additur. See Dimick, 293 U.S. at 476-77. In Dimick, the plaintiff moved for a new trial based on the jury's inadequate award of damages. See id. at 475. The trial court ordered a new trial unless the defendant consented to a specified increase. See id. at 475-76. The defendant appealed and the Supreme Court granted certiorari. See id. at 475.

172. See id. at 476.

173. See id. at 482 (explaining that no evidence of the practice of additur could be found under English common law).

174. See id. at 484-85.

175. Id. at 487.

176. Dimick, 293 U.S. at 485.

177. See Gasperini, 116 S. Ct. at 2235 (Scalia, J., dissenting); see also U.S. Const. art. V (granting the legislative branch, and not the courts, the power to amend the Constitution); Raoul Berger, Government by Judiciary 363-72 (1977) ("[J]udges must not revise the Constitution."). For further discussions of the separation of powers doctrine and the Constitutional amendment process, see generally James W. Torke, Assessing the Ackerman and Amar Theses: Notes on Extratextual Constitutional Change, 4 Widener J. Pub. L. 229, 243-45 & n. 191 (1994) (discussing the arguments surrounding the people's right to reform or revise the Constitution and debating constitutional change by popular sovereignty versus the Rule of Law).

178. Gasperini, 116 S. Ct. at 2235 (Scalia, J., dissenting) (quoting Wright, Miller & Kane, supra note 22, § 2819, at 200, 204).

179. Id. at 2223.

180. See id. at 2224.

181. See id. at 2223; see also infra notes 182-94 and accompanying text.

182. 492 U.S. 257 (1989).

183. 393 U.S. 156 (1968).

184. See Browning-Ferris, 492 U.S. at 259.

185. See id. at 279.

186. Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 2223 (1996) (quoting Browning-Ferris, 492 U.S. at 279). In Gasperini, New York law should have supplied the factors that the jury was to consider in assessing damages; that is, uniqueness of the slides and earning potential of the photographer. Federal law, however, should have supplied the test for reviewing whether the jury had properly considered those factors. See id. at 2235 (Scalia, J., dissenting).

187. See Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 259 (1989).

188. See Gasperini, 116 S. Ct. at 2235 (Scalia, J., dissenting).

189. See id.

190. See Gasperini, 116 S. Ct. at 2235 (Scalia, J., dissenting); see generally Lisa M. Sharkey, Judge or Jury: Who Should Assess Punitive Damages?, 64 U. Cin. L. Rev. 1089; Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974) ("[Punitive damages] are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.").

191. See Gasperini, 116 S. Ct. at 2235, (Scalia, J., dissenting). Dicta that is not germane to the holding is not binding. See James W. Moore & Robert S. Oglebay, The Supreme Court, Stare Decisis and Law of the Case, 21 Tex. L. Rev. 514, 525 (1943).

192. Gasperini, 116 S. Ct. at 2223 (citing Grunenthal v. Long Island R.R. Co., 393 U.S. 159, 164 (1968) (Stewart, J., dissenting)) (internal quotation marks and footnote omitted). However, as the Gasperini dissent countered:

No precedent of th[e] Court affirmatively supports th[e] proposition [that federal appellate review of jury verdicts is not prohibited by the Seventh Amendment]. The cases upon which the [majority] 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 . . . past cases, amounts to studied waywardness by the intermediate appellate bench.Id. at 2235 (Scalia, J., dissenting).

193. See supra Part II.E for a discussion of the authority relied upon by the circuits to review trial court refusals to set aside verdicts as excessive.

194. See Gasperini, 116 S. Ct. at 2235 (Scalia, J., dissenting); Amicus Brief at 19-29, Gasperini (No. 95-719); Jonathan S. Massey & Kenneth J. Chesebro, Challenging Federal Appellate Review of Damage Awards: Lawyers Should Cite the Forgotten Second Clause of the Seventh Amendment, Trial, May 1995, at 53 ("[T]he modern-day development of the practice of appellate review of . . . [excessiveness challenges] does not lend support to its legitimacy."); see also Wright, supra note 20, § 95, at 639 (explaining that review of the excessiveness of the jury verdict by the courts of appeal is "a complete reversal of the common law practice, and does not seem consistent with the Seventh Amendment").

195. U.S. Const. amend. VII.

196. See Gasperini, 116 S. Ct. at 2224 n.20 (citations omitted). In Colgrove v. Battin, 413 U.S. 149, 160 (1973), the Court held that a civil six-person jury did not violate the Seventh Amendment, even though the common