448
Ginsburg, J., dissenting
nitive] damages, or their amount." Haslip, 499 U. S., at 27 (Scalia, J., concurring in judgment). The responsibility entrusted to the jury surely was not guided by instructions of the kind Oregon has enacted. Compare 1 J. Sutherland, Law of Damages 720 (1882) ("If, in committing the wrong complained of, [the defendant] acted recklessly, or wilfully and maliciously, with a design to oppress and injure the plaintiff, the jury in fixing the damages may disregard the rule of compensation; and, beyond that, may, as a punishment of the defendant, and as a protection to society against a violation of personal rights and social order, award such additional damages as in their discretion they may deem proper."), with Ore. Rev. Stat. § 30-925 (1991) (requiring jury to consider, inter alia, "likelihood at the time that serious harm would arise from the defendant's misconduct"; "degree of the defendant's awareness of that likelihood"; "profitability of the defendant's misconduct"; "duration of the misconduct and any concealment of it").
Furthermore, common-law courts reviewed punitive damage verdicts extremely deferentially, if at all. See, e. g., Day v. Woodworth, 13 How. 363, 371 (1852) (assessment of "exemplary, punitive, or vindictive damages . . . has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case"); Missouri Pacific R. Co. v. Humes, 115 U. S. 512, 521 (1885) ("[t]he discretion of the jury in such cases is not controlled by any very definite rules"); Barry v. Edmunds, 116 U. S. 550, 565 (1886) (in "actions for torts where no precise rule of law fixes the recoverable damages, it is the peculiar function of the jury to determine the amount by their verdict"). True, 19th-century judges occasionally asserted that they had authority to overturn damage awards upon concluding, from the size of an award, that the jury's decision must have been based on "partiality" or "passion and prejudice." Ante, at 425. But courts rarely exer-
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