444
Stevens, J., dissenting
power to grant a new trial, but that recourse must be had to 'the Court above' "); id., at 60. However, because the nisi prius judge often did not serve on the en banc court, the "court above" was in essentially the same position as a modern court of appeals. It considered the legality of the jury's award in light of the trial judge's opinion, but without any firsthand knowledge of what had transpired below. See Blume, Review of Facts in Jury Cases—The Seventh Amendment, 20 J. Am. Jud. Soc. 130, 131 (1936).3
Petitioner also contends that at common law the en banc court could only grant a new trial if the trial judge so recommended. That contention is undermined by numerous cases in which the "court above" granted new trials without making any reference to the trial judge's view of the damages. See, e. g., Honda Motor Co. v. Oberg, 512 U. S. 415, 422-425 (1994) (citing cases).4 Moreover, early English cases repeatedly state that the power to order a new trial when the jury returned an excessive award rested with "the Court," rather than the judge below,5 and Blackstone identifies excessive
3 For that reason, Justice Scalia is wrong to contend that the court at Westminster acted in no more of an appellate fashion when it entertained motions for new trials in causes tried at bar than when it entertained them in causes tried at nisi prius. Post, at 456. In the former cases, the en banc court would entertain a motion for new trial after having heard the evidence itself. In the latter, it would sometimes entertain the motion only after having heard the report on the evidence of the nisi prius judge.
4 Although Honda itself involved review of punitive damages awards, we expressly noted that there was no basis for suggesting "that different standards of judicial review were applied for punitive and compensatory damages before the 20th century," 512 U. S., at 422, n. 2. Indeed, many of the decisions we relied upon in Honda involved compensatory damages, and there is some authority to suggest that judicial review of the former has a more secure historical pedigree than does judicial review of the latter.
5 See, e. g., Bright v. Eynon, 1 Burr. 390, 97 Eng. Rep. 365, 368 (K. B. 1757) (Denison, J., concurring) ("[T]he granting a new trial, or refusing it, must depend upon the legal discretion of the Court; guided by the nature
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