438
Opinion of the Court
It might be argued that the deterrent function of punitive damages suggests that the amount of such damages awarded is indeed a "fact" found by the jury and that, as a result, the Seventh Amendment is implicated in appellate review of that award. Some scholars, for example, assert that punitive damages should be used to compensate for the underdeterrence of unlawful behavior that will result from a defendant's evasion of liability. See Polinsky & Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 890-891
stand for the proposition that, perhaps because it is a fact-sensitive undertaking, determining the amount of punitive damages should be left to the discretion of the jury. See, e. g., Barry v. Edmunds, 116 U. S. 550, 565 (1886) ("[I]t is the peculiar function of the jury" to set the amount of punitive damages); Day v. Woodworth, 13 How. 363, 371 (1852) (punitive damages should be "left to the discretion of the jury"). They do not, however, indicate that the amount of punitive damages imposed by the jury is itself a "fact" within the meaning of the Seventh Amendment's Reexamination Clause. See Gasperini v. Center for Humanities, Inc., 518 U. S. 415, 432 (1996) (distinguishing between the "Trial by Jury" Clause, which "bears . . . on the allocation of trial functions between judge and jury," and the "Reexamination" Clause, which "controls the allocation of authority to review verdicts"); see also id., at 447-448 (Stevens, J., dissenting) (same).
In any event, punitive damages have evolved somewhat since the time of respondent's sources. Until well into the 19th century, punitive damages frequently operated to compensate for intangible injuries, compensation which was not otherwise available under the narrow conception of compensatory damages prevalent at the time. See Haslip, 499 U. S., at 61 (O'Connor, J., dissenting); see also Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517, 520 (1957) (observing a "vacillation" in the 19th-century cases between "compensatory" and "punitive" theories of "exemplary damages"). As the types of compensatory damages available to plaintiffs have broadened, see, e. g., 1 J. Nates, C. Kimball, D. Axel-rod, & R. Goldstein, Damages in Tort Actions § 3.01[3][a] (2000) (pain and suffering are generally available as species of compensatory damages), the theory behind punitive damages has shifted toward a more purely punitive (and therefore less factual) understanding. Cf. Note, 70 Harv. L. Rev., at 520 (noting a historical shift away from a compensatory—and toward a more purely punitive—conception of punitive damages).
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