464
Scalia, J., dissenting
judgment under review is for compensatory damages: State substantive law controls what injuries are compensable and in what amount; but federal standards determine whether the award exceeds what is lawful to such degree that it may be set aside by order for new trial or remittitur.10
The Court does not disavow those statements in Browning-Ferris (indeed, it does not even discuss them), but it presumably overrules them, at least where the state rule that governs "whether a new trial or remittitur should be ordered" is characterized as "substantive" in nature. That, at any rate, is the reason the Court asserts for giving § 5501(c) dispositive effect. The objective of that provision, the Court states, "is manifestly substantive," ante, at 429, since it operates to "contro[l] how much a plaintiff can be awarded" by "tightening the range of tolerable awards," ante, at 425, 426. Although "less readily classified" as substantive than "a statutory cap on damages," it nonetheless "was designed to provide an analogous control," ante, at 428, 429, by making a new trial mandatory when the award "deviat[es] materially" from what is reasonable, see ante, at 428-429.
I do not see how this can be so. It seems to me quite wrong to regard this provision as a "substantive" rule for Erie purposes. The "analog[y]" to "a statutory cap on damages," ante, at 428, 429, fails utterly. There is an absolutely fundamental distinction between a rule of law such as that, which would ordinarily be imposed upon the jury in the trial court's instructions, and a rule of review, which simply determines how closely the jury verdict will be scrutinized for
10 Justice Stevens thinks that if an award " 'exceeds what is lawful,' " the result is "legal error" that "may be corrected" by the appellate court. Ante, at 443, n. 2. But the sort of "legal error" involved here is the imposition of legal consequences (in this case, damages) in light of facts that, under the law, may not warrant them. To suggest that every fact may be reviewed, because what may ensue from an erroneous factual determination is a "legal error," is to destroy the notion that there is a factfinding function reserved to the jury.
Page: Index Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 NextLast modified: October 4, 2007