Cite as: 518 U. S. 415 (1996)
Scalia, J., dissenting
compliance with the instructions. A tighter standard for reviewing jury determinations can no more plausibly be called a "substantive" disposition than can a tighter appellate standard for reviewing trial-court determinations. The one, like the other, provides additional assurance that the law has been complied with; but the other, like the one, leaves the law unchanged.
The Court commits the classic Erie mistake of regarding whatever changes the outcome as substantive, see ante, at 428-431. That is not the only factor to be considered. See Byrd, supra, at 537 ("[W]ere 'outcome' the only consideration, a strong case might appear for saying that the federal court should follow the state practice. But there are affirmative countervailing considerations at work here"). Outcome determination "was never intended to serve as a talisman," Hanna v. Plumer, 380 U. S. 460, 466-467 (1965), and does not have the power to convert the most classic elements of the process of assuring that the law is observed into the substantive law itself. The right to have a jury make the findings of fact, for example, is generally thought to favor plaintiffs, and that advantage is often thought significant enough to be the basis for forum selection. But no one would argue that Erie confers a right to a jury in federal court wherever state courts would provide it; or that, were it not for the Seventh Amendment, Erie would require federal courts to dispense with the jury whenever state courts do so.
In any event, the Court exaggerates the difference that the state standard will make. It concludes that different outcomes are likely to ensue depending on whether the law being applied is the state "deviates materially" standard of § 5501(c) or the "shocks the conscience" standard. See ante, at 429-430. Of course it is not the federal appellate standard but the federal district-court standard for granting new trials that must be compared with the New York standard to determine whether substantially different results will obtain—and it is far from clear that the district-court standard
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