426
Opinion of the Court
of the defendant, and order a new trial"); T. Sedgwick, A Treatise on the Measure of Damages 707 (5th ed. 1869) ("The court again holds itself at liberty to set aside verdicts and grant new trials . . . whenever the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice, or ignorance"); 3 J. Sutherland, A Treatise on the Law of Damages 469 (1883) (When punitive damages are submitted to the jury, "the amount which they may think proper to allow will be accepted by the court, unless so exorbitant as to indicate that they have been influenced by passion, prejudice or a perverted judgment").
Modern practice is consistent with these earlier authorities. In the federal courts and in every State, except Oregon, judges review the size of damages awards. See Dagnello v. Long Island R. Co., 289 F. 2d 797, 799-800, n. 1, (CA2 1961) (citing cases from all 50 States except Alaska, Maryland, and Oregon); Nome v. Ailak, 570 P. 2d 162, 173- 174 (Alaska 1977); Alexander & Alexander, Inc. v. B. Dixon Evander & Assocs., Inc., 88 Md. App., at 716-722, 596 A. 2d, at 709-711, cert. denied, 605 A. 2d 137 (Md. 1992); Texaco, Inc. v. Pennzoil, Co., 729 S. W. 2d 768 (Tex. App. 1987); Grim-shaw v. Ford Motor Co., 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981); Draper, Excessiveness or Inadequacy of Punitive Damages Awarded in Personal Injury or Death Cases, 12 A. L. R. 5th 195 (1993); Schnapper, Judges Against Juries— Appellate Review of Federal Civil Jury Verdicts, 1989 Wis. L. Rev. 237.
IV
There is a dramatic difference between the judicial review of punitive damages awards under the common law and the scope of review available in Oregon. An Oregon trial judge, or an Oregon appellate court, may order a new trial if the jury was not properly instructed, if error occurred during the trial, or if there is no evidence to support any punitive damages at all. But if the defendant's only basis for relief is the amount of punitive damages the jury awarded, Oregon
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