460
Scalia, J., dissenting
reasoning set forth in those Court of Appeals decisions.6 The Court contents itself with citations of two federal appellate cases and the assurances of two leading treatises that the view (however meager its intellectual provenance might be) is universally held. See ante, at 435-436. To its credit, one of those treatises describes the "dramatic change in doctrine" represented by appellate abuse-of-discretion review of denials of new trial orders generally as having been "accomplished by a blizzard of dicta" that, through repetition alone, has "given legitimacy to a doctrine of doubtful constitutionality." 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2819, pp. 200, 204 (2d ed. 1995).7
The Court's only suggestion as to what rationale might underlie approval of abuse-of-discretion review is to be found in a quotation from Dagnello v. Long Island R. Co., 289 F. 2d 797 (CA2 1961), to the effect that review of denial of a new trial motion, if conducted under a sufficiently deferential standard, poses only " 'a question of law.' " Ante, at 435 (quoting Dagnello, supra, at 806). But that is not the test that the Seventh Amendment sets forth. Whether or not it
6 The Second Circuit, notwithstanding its practice with respect to excessiveness claims, will not review a district court's determination that the jury's liability ruling was supported by the weight of the evidence, see Stonewall Ins. Co. v. Asbestos Claims Management, 73 F. 3d 1178, 1199 (1995) (such a decision is "one of those few rulings that is simply unavailable for appellate review"), and the Eighth Circuit has questioned whether the Seventh Amendment permits appellate review of such determinations, see Thongvanh v. Thalacker, 17 F. 3d 256, 259-260 (1994); see also White v. Pence, 961 F. 2d 776, 782 (1992).
7 I am at a loss to understand the Court's charge that keeping faith with our precedents—and requiring that the courts of appeals do likewise— would " 'destroy the uniformity of federal practice,' " ante, at 436, n. 19. I had thought our decisions established uniformity. And as for commentators' observations that it would be " 'astonishing' " for us actually to heed our precedents, see ibid., quoting 11 Wright, Miller, & Kane, § 2820, at 212, they are no more than a prediction of inconstancy—which the Court today fulfills.
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