466
Scalia, J., dissenting
ought to be "shocks the conscience." 11 Indeed, it is not even clear (as the Court asserts) that "shocks the conscience" is the standard (erroneous or not) actually applied by the district courts of the Second Circuit. The Second Circuit's test for reversing a grant of a new trial for an excessive verdict is whether the award was "clearly within the maximum limit of a reasonable range," Ismail v. Cohen, 899 F. 2d 183, 186 (CA2 1990) (internal quotation marks omitted), so any district court that uses that standard will be affirmed. And while many district-court decisions express the "shocks the conscience" criterion, see, e. g., Koerner v. Club Mediterranee, S. A., 833 F. Supp. 327, 333 (SDNY 1993), some have used a standard of "indisputably egregious," Banff v. Express, Inc., 921 F. Supp. 1065, 1069 (SDNY 1995), or have adopted the inverse of the Second Circuit's test for reversing a grant of new trial, namely, "clearly outside the maximum limit of a reasonable range," Paper Corp. v. Schoeller Technical Papers, Inc., 807 F. Supp. 337, 350-351 (SDNY 1992). Moreover, some decisions that say "shocks the conscience" in fact apply a rule much less stringent. One case, for example, says that any award that would not be sustained under the New York "deviates materially" rule "shocks the conscience." See In re Joint Eastern & S. Dist. Asbestos Litigation, 798 F. Supp. 925, 937 (E&SDNY 1992), rev'd on other grounds, 995 F. 2d 343, 346 (CA2 1993). In sum, it is at least highly questionable whether the consistent outcome differential claimed by the Court even exists. What seems to me far more likely to produce forum shopping is the consistent difference between the state and federal appellate standards, which the Court leaves untouched. Under the Court's
11 That the "shocks the conscience" standard was not the traditional one would seem clear from the opinion of Justice Story, quoted approvingly by the Court, ante, at 433, to the effect that remittitur should be granted "if it should clearly appear that the jury . . . have given damages excessive in relation to the person or the injury." Blunt v. Little, 3 F. Cas. 760, 761-762 (No. 1,578) (CC Mass. 1822).
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