Cite as: 512 U. S. 415 (1994)
Ginsburg, J., dissenting
years of our Nation, juries "usually possessed the power to determine both law and fact." Nelson, The Eighteenth-Century Background of John Marshall's Constitutional Jurisprudence, 76 Mich. L. Rev. 893, 905 (1978); see, e. g., Georgia v. Brailsford, 3 Dall. 1, 4 (1794) (Chief Justice John Jay, trying case in which State was party, instructed jury it had authority "to determine the law as well as the fact in controversy").12 And at the time trial by jury was recognized as the constitutional right of parties "[i]n [s]uits at common law," U. S. Const., Amdt. 7, the assessment of "uncertain damages" was regarded, generally, as exclusively a jury function. See Note, Judicial Assessment of Punitive Damages, the Seventh Amendment, and the Politics of Jury Power, 91 Colum. L. Rev. 142, 156, and n. 69 (1991); see also id., at 156-158, 163, and n. 112.
More revealing, the Court notably contracts the scope of its inquiry. It asks: Did common-law judges claim the power to overturn jury verdicts they viewed as excessive? But full and fair historical inquiry ought to be wider. The Court should inspect, comprehensively and comparatively, the procedures employed—at trial and on appeal—to fix the amount of punitive damages.13 Evaluated in this manner, Oregon's scheme affords defendants like Honda more procedural safeguards than 19th-century law provided.
As detailed supra, at 440-441, Oregon instructs juries to decide punitive damage issues based on seven substantive factors and a clear and convincing evidence standard. When the Fourteenth Amendment was adopted in 1868, in contrast, "no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of [pu-12 Not until Sparf v. United States, 156 U. S. 51, 102 (1895), was the jury's power to decide the law conclusively rejected for the federal courts. See Riggs, Constitutionalizing Punitive Damages: The Limits of Due Process, 52 Ohio St. L. J. 859, 900 (1991).
13 An inquiry of this order is akin to the one made in Haslip. See supra, at 443-444.
447
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