Cite as: 518 U. S. 415 (1996)
Stevens, J., dissenting
than the reviewing court. Three times this Term we have assigned appellate courts the task of independently reviewing similarly mixed questions of law and fact. See Ornelas v. United States, 517 U. S. 690, 696-697 (1996); Markman v. Westview Instruments, Inc., 517 U. S. 370, 388-390 (1996); Thompson v. Keohane, 516 U. S. 90, 112-116 (1995). Such appellate review is proper because mixed questions require courts to construe all record inferences in favor of the fact-finder's decision and then to determine whether, on the facts as found below, the legal standard has been met. See Ornelas, 517 U. S., at 696-697 (quoting Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19 (1982)). In following that procedure here, the Court of Appeals did not reexamine any fact determined by a jury. 66 F. 3d, at 431. It merely identified that portion of the judgment that constitutes "unlawful excess." See Dimick v. Schiedt, 293 U. S. 474, 486 (1935).2
Even if review by the Court of Appeals implicates the Reexamination Clause, it was "according to the rules of the common law." U. S. Const., Amdt. 7. At common law, the trial judge sitting nisi prius recommended whether a judicial panel sitting en banc at Westminster should accept the jury's award. The en banc court then ruled on the motion for new trial and entered judgment. 11 Wright & Miller § 2819, at 203.
Petitioner correctly points out that under this procedure motions for new trial based on excessiveness were not technically subject to appellate review. Riddell, New Trial at the Common Law, 26 Yale L. J. 49, 57 (1916) ("It seems clear that in criminal as in civil cases, the trial Judge had not the
2 I thus disagree with Justice Scalia's view that there is a separate federal standard to "determine whether the award exceeds what is lawful to such degree that it may be set aside by order for new trial or remittitur." Post, at 464. In my view, if an award "exceeds what is lawful," ibid., legal error has occurred and may be corrected. Certainly Dimick does not premise a court's power to overturn an award that exceeds lawful limits on the degree of the excess.
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