446
Ginsburg, J., dissenting
("[N]othing is better settled than that . . . it is the peculiar function of the jury to determine the amount [of punitive damages] by their verdict."). The commitment of this function to the jury, we have explained, reflects the historical understanding that "the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case." Day, 13 How., at 371. The relevant factors include "the conduct and motives of the defendant" and whether, "in committing the wrong complained of, he acted recklessly, or wilfully and maliciously, with a design to oppress and injure the plaintiff." 1 J. Sutherland, Law of Damages 720 (1882). Such inquiry, the Court acknowledges, "is a fact-sensitive undertaking." Ante, at 438, n. 11.
The Court nevertheless today asserts that a "jury's award of punitive damages does not constitute a finding of 'fact' " within the meaning of the Seventh Amendment. Ante, at 437. An ultimate award of punitive damages, it is true, involves more than the resolution of matters of historical or predictive fact. See ibid. (citing Gasperini, 518 U. S., at 459 (Scalia, J., dissenting)). But there can be no question that a jury's verdict on punitive damages is fundamentally dependent on determinations we characterize as factfindings— e. g., the extent of harm or potential harm caused by the defendant's misconduct, whether the defendant acted in good faith, whether the misconduct was an individual instance or part of a broader pattern, whether the defendant behaved negligently, recklessly, or maliciously. Punitive damages are thus not "[u]nlike the measure of actual damages suffered," ante, at 437 (citation and internal quotation marks omitted), in cases of intangible, noneconomic injury. One million dollars' worth of pain and suffering does not exist as a "fact" in the world any more or less than one million dollars' worth of moral outrage. Both derive their meaning from a set of underlying facts as determined by a jury. If one exercise in quantification is properly regarded as factfinding, see St. Louis, I. M. & S. R. Co. v. Craft, 237
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