438
Opinion of the Court
"deviates materially" standard serves as the guide to be applied in trial as well as appellate courts in New York. See supra, at 425.
Within the federal system, practical reasons combine with Seventh Amendment constraints to lodge in the district court, not the court of appeals, primary responsibility for application of § 5501(c)'s "deviates materially" check. Trial judges have the "unique opportunity to consider the evidence in the living courtroom context," Taylor v. Washington Terminal Co., 409 F. 2d 145, 148 (CADC 1969), while appellate judges see only the "cold paper record," 66 F. 3d, at 431.
District court applications of the "deviates materially" standard would be subject to appellate review under the standard the Circuits now employ when inadequacy or excessiveness is asserted on appeal: abuse of discretion. See 11 Wright & Miller, Federal Practice and Procedure § 2820, at 212-214, and n. 24 (collecting cases); see 6A Moore's Federal Practice ¶ 59.08[6], at 59-177 to 59-185 (same). In light of Erie's doctrine, the federal appeals court must be guided by the damage-control standard state law supplies,23 but as the Second Circuit itself has said: "If we reverse, it must be because of an abuse of discretion. . . . The very nature of the problem counsels restraint. . . . We must give the benefit of
enlarge or modify any substantive right"); Browning-Ferris, 492 U. S., at 279 ("standard of excessiveness" is a "matte[r] of state, and not federal, common law"); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 729-730 (4th ed. 1996) (observing that Court "has continued since [Hanna v. Plumer, 380 U. S. 460 (1965),] to interpret the federal rules to avoid conflict with important state regulatory policies," citing Walker v. Armco Steel Corp., 446 U. S. 740 (1980)).
23 If liability and damage-control rules are split apart here, as Justice Scalia says they must be to save the Seventh Amendment, then Gasperini's claim and others like it would be governed by a most curious "law." The sphinx-like, damage-determining law he would apply to this controversy has a state forepart, but a federal hindquarter. The beast may not be brutish, but there is little judgment in its creation.
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