Cite as: 518 U. S. 415 (1996)
Scalia, J., dissenting
is possible to characterize an appeal of a denial of new trial as raising a "legal question," it is not possible to review such a claim without engaging in a "reexamin[ation]" of the "facts tried by the jury" in a manner "otherwise" than allowed at common law. Determining whether a particular award is excessive requires that one first determine the nature and extent of the harm—which undeniably requires reviewing the facts of the case. That the court's review also entails application of a legal standard (whether "shocks the conscience," "deviates materially," or some other) makes no difference, for what is necessarily also required is reexamination of facts found by the jury.
In the last analysis, the Court frankly abandons any pretense at faithfulness to the common law, suggesting that "the meaning" of the Reexamination Clause was not "fixed at 1791," ante, at 436, n. 20, contrary to the view that all our prior discussions of the Reexamination Clause have adopted, see supra, at 451-454. The Court believes we can ignore the very explicit command that "no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law" because, after all, we have not insisted that juries be all male, or consist of 12 jurors, as they were at common law. Ante, at 436, n. 20. This is a desperate analogy, since there is of course no comparison between the specificity of the command of the Reexamination Clause and the specificity of the command that there be a "jury." The footnote abandonment of our traditional view of the Reexamination Clause is a major step indeed.8
8 Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494 (1931), is the only case cited in the Court's footnote that arguably involved the slightest departure from common-law practices regarding review of jury findings. It held, to be sure, that a new trial could be ordered on damages alone, even though at common law there was no practice of setting a verdict aside in part. But it did so only after satisfying itself that the change
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