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SUPREME COURT OF THE UNITED STATES
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No. 93-644
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HONDA MOTOR CO., LTD., et al, PETITIONERS v.
KARL L. OBERG
on writ of certiorari to the supreme court of
oregon
[June 24, 1994]

  Justice Ginsburg, with whom the Chief Justice
joins, dissenting.
  In product liability cases, Oregon guides and limits the
factfinder's discretion on the availability and amount of
punitive damages.  The plaintiff must establish entitle-
ment to punitive damages, under specific substantive
criteria, by clear and convincing evidence.  Where the
factfinder is a jury, its decision is subject to judicial
review to this extent:  the trial court, or an appellate
court, may nullify the verdict if reversible error occurred
during the trial, if the jury was improperly or inade-
quately instructed, or if there is no evidence to support
the verdict.  Absent trial error, and if there is evidence
to support the award of punitive damages, however,
Oregon's Constitution, Article VII, 3, provides that a
properly instructed jury's verdict shall not be reexam-
ined.  Oregon's procedures, I conclude, are adequate to
pass the Constitution's due process threshold.  I there-
fore dissent from the Court's judgment upsetting
Oregon's disposition in this case.

                      I

                      A
  To assess the constitutionality of Oregon's scheme, I
turn first to this Court's recent opinions in Pacific Mut.
Life Ins. Co. v. Haslip, 499 U. S. 1 (1991), and TXO
Production Corp. v. Alliance Resources Corp., 509 U. S.
___ (1993).  The Court upheld punitive damage awards
in both cases, but indicated that due process imposes an
outer limit on remedies of this type.  Significantly,
neither decision declared any specific procedures or
substantive criteria essential to satisfy due process.  In
Haslip, the Court expressed concerns about -unlimited
jury discretion-or unlimited judicial discretion for that
matter-in the fixing of punitive damages,- but refused
to -draw a mathematical bright line between the
constitutionally acceptable and the constitutionally
unacceptable.-  499 U. S., at 18.  Regarding the compo-
nents of -the constitutional calculus,- the Court simply
referred to -general concerns of reasonableness and [the
need for] adequate guidance from the court when the
case is tried to a jury.-  Ibid.
  And in TXO, a majority agreed that a punitive
damage award may be so grossly excessive as to violate
the Due Process Clause.  509 U. S., at ___ (slip op., at
8-9, 13) (plurality opinion); id., at ___ (slip op., at 1-2)
(Kennedy, J., concurring in part and concurring in
judgment); id., at ___ (slip op., at 8) (O'Connor, J.,
dissenting).  In the plurality's view, however, -a judg-
ment that is a product- of -fair procedures . . . is enti-
tled to a strong presumption of validity-; this presump-
tion, -persuasive reasons- indicated, -should be irrebut-
table, . . . or virtually so.-  Id., at ___ (slip op., at 12),
citing Haslip, supra, at 24-40 (Scalia, J., concurring in
judgment), and id., at 40-42 (Kennedy, J., concurring
in judgment).  The opinion stating the plurality position
recalled Haslip's touchstone: A -concern [for] reason-
ableness- is what due process essentially requires.  509
U. S., at ___ (slip op., at 13), quoting Haslip, supra, at
18.  Writing for the plurality, Justice Stevens ex-
plained:
-[W]e do not suggest that a defendant has a sub-
stantive due process right to a correct determination
of the `reasonableness' of a punitive damages award.
As Justice O'Connor points out, state law gener-
ally imposes a requirement that punitive damages
be `reasonable.'  A violation of a state law
`reasonableness' requirement would not, however,
necessarily establish that the award is so `grossly
excessive' as to violate the Federal Constitution.-
509 U. S., at ___, n. 24 (slip op., at 13, n. 24) (cita-
tion omitted).

                      B
 The procedures Oregon's courts followed in this case
satisfy the due process limits indicated in Haslip and
TXO; the jurors were adequately guided by the trial
court's instructions, and Honda has not maintained, in
its full presentation to this Court, that the award in
question was -so `grossly excessive' as to violate the
Federal Constitution.-  TXO, supra, at ___, n. 24 (slip
op., at 13, n. 24).

                      1
 Several preverdict mechanisms channeled the jury's
discretion more tightly in this case than in either
Haslip or TXO.  First, providing at least some protec-
tion against unguided, utterly arbitrary jury awards,
respondent Karl Oberg was permitted to recover no
more than the amounts specified in the complaint,
$919,390.39 in compensatory damages and $5 million in
punitive damages.  See Ore. Rule Civ. Proc. 18B (1994);
Wiebe v. Seely, 215 Ore. 331, 355-358, 335 P. 2d 379,
391 (1959); Lovejoy Specialty Hosp. v. Advocates for Life,
Inc., 121 Ore. App. 160, 167, 855 P. 2d 159, 163 (1993).
The trial court properly instructed the jury on this
damage cap.  See 316 Ore. 263, 282, n. 11, 851 P. 2d
1084, 1095, n. 11 (1993).  No provision of Oregon law
appears to preclude the defendant from seeking an
instruction setting a lower cap, if the evidence at trial
cannot support an award in the amount demanded.
Additionally, if the trial judge relates the incorrect
maximum amount, a defendant who timely objects may
gain modification or nullification of the verdict.  See
Timber Access Industries Co. v. U. S. Plywood-Champion
Papers, Inc., 263 Ore. 509, 525-528, 503 P. 2d 482,
490-491 (1972).
 Second, Oberg was not allowed to introduce evidence
regarding Honda's wealth until he -presented evidence
sufficient to justify to the court a prima facie claim of
punitive damages.-  Ore. Rev. Stat. 41.315(2) (1991);
see also 30.925(2) (-During the course of trial, evidence
of the defendant's ability to pay shall not be admitted
unless and until the party entitled to recover establishes
a prima facie right to recover [punitive damages].-).
This evidentiary rule is designed to lessen the risk -that
juries will use their verdicts to express biases against
big businesses.-  Ante, at 16; see also Ore. Rev. Stat.
30.925(3)(g) (1991) (requiring factfinder to take into
account -[t]he total deterrent effect of other punishment
imposed upon the defendant as a result of the miscon-
duct-).
 Third, and more significant, as the trial court instructed
the jury, Honda could not be found liable for puni-
tive damages unless Oberg established by -clear and
convincing evidence- that Honda -show[ed] wanton
disregard for the health, safety and welfare of others.-
Ore. Rev. Stat. 30.925 (1991) (governing product liabil-
ity actions); see also 41.315(1) (-Except as otherwise
specifically provided by law, a claim for punitive dam-
ages shall be established by clear and convincing
evidence.-).  -[T]he clear-and-convincing evidence re-
quirement,- which is considerably more rigorous than
the standards applied by Alabama in Haslip and West
Virginia in TXO, -constrain[s] the jury's discretion,
limiting punitive damages to the more egregious cases.-
Haslip, supra, at 58 (O'Connor, J., dissenting).  Noth-
ing in Oregon law appears to preclude a new trial order
if the trial judge, informed by the jury's verdict, deter-
mines that his charge did not adequately explain what
the -clear and convincing- standard means.  See Ore.
Rule Civ. Proc. 64G (1994) (authorizing court to grant
new trial -on its own initiative-).
 Fourth, and perhaps most important, in product liabil-
ity cases, Oregon requires that punitive damages, if any,
be awarded based on seven substantive criteria, set
forth in Ore. Rev. Stat. 30.925(3) (1991):
-(a) The likelihood at the time that serious harm
would arise from the defendant's misconduct;
-(b) The degree of the defendant's awareness of that
likelihood;
-(c) The profitability of the defendant's misconduct;
-(d) The duration of the misconduct and any con-
cealment of it;
-(e) The attitude and conduct of the defendant upon
discovery of the misconduct;
-(f) The financial condition of the defendant; and
-(g) The total deterrent effect of other punishment
imposed upon the defendant as a result of the mis-
conduct, including, but not limited to, punitive dam-
age awards to persons in situations similar to the
claimant's and the severity of criminal penalties to
which the defendant has been or may be subjected.-
These substantive criteria, and the precise instructions
detailing them, gave the jurors -adequate guidance- in
making their award, see Haslip, 499 U. S., at 18, far
more guidance than their counterparts in Haslip and
TXO received.  In Haslip, for example, the jury was
told only the purpose of punitive damages (punishment
and deterrence) and that an award was discretionary,
not compulsory.  We deemed those instructions, notable
for their generality, constitutionally sufficient.  499
U. S., at 19-20.
 The Court's opinion in Haslip went on to describe the
checks Alabama places on the jury's discretion
postverdict-through excessiveness review by the trial
court, and appellate review, which tests the award
against specific substantive criteria.  Id., at 20-23.
While postverdict review of that character is not avail-
able in Oregon, the seven factors against which
Alabama's Supreme Court tests punitive awards
strongly resemble the statutory criteria Oregon's juries
are instructed to apply.  316 Ore., at 283, and n. 12,
851 P. 2d, at 1095-1096, and n. 12.  And this Court has
often acknowledged, and generally respected, the pre-
sumption that juries follow the instructions they
are given.  See, e.g., Shannon v. United States, ___
U. S. ___, ___ (1994) (slip op., at 11-12); Richardson v.
Marsh, 481 U. S. 200, 206 (1987).
 As the Supreme Court of Oregon observed, Haslip
-determined only that the Alabama procedure, as a
whole and in its net effect, did not violate the Due
Process Clause.-  316 Ore., at 284, 851 P. 2d, at 1096.
The Oregon court also observed, correctly, that the Due
Process Clause does not require States to subject puni-
tive damage awards to a form of postverdict review
-that includes the possibility of remittitur.-  316 Ore.,
at 284, 851 P. 2d, at 1096.  Because Oregon requires
the factfinder to apply 30.925's objective criteria, more-
over, its procedures are perhaps more likely to prompt
rational and fair punitive damage decisions than are the
post hoc checks employed in jurisdictions following
Alabama's pattern.  See Haslip, supra, at 52 (O'Connor,
J., dissenting) (-[T]he standards [applied by the Ala-
bama Supreme Court] could assist juries to make fair,
rational decisions.  Unfortunately, Alabama courts do
not give the[se] factors to the jury.  Instead, the jury
has standardless discretion to impose punitive damages
whenever and in whatever amount it wants.-).  As the
Oregon court concluded, -application of objective criteria
ensures that sufficiently definite and meaningful con-
straints are imposed on the finder of fact.-  316 Ore., at
283, 851 P. 2d, at 1096.  The Oregon court also con-
cluded that the statutory criteria, by adequately guiding
the jury, worked to -ensur[e] that the resulting award is
not disproportionate to a defendant's conduct and to the
need to punish and deter.-  Ibid.

                      2
 The Supreme Court of Oregon's conclusions are but-
tressed by the availability of at least some postverdict
judicial review of punitive damage awards.  Oregon's
courts ensure that there is evidence to support the
verdict:
-If there is no evidence to support the jury's deci-
sion-in this context, no evidence that the statutory
prerequisites for the award of punitive damages
were met-then the trial court or the appellate
courts can intervene to vacate the award.  See
ORCP 64B(5) (trial court may grant a new trial if
the evidence is insufficient to justify the verdict or
is against law); Hill v. Garner, 561 P. 2d 1016
(1977) (judgment notwithstanding the verdict is to
be granted when there is no evidence to support the
verdict); State v. Brown, 761 P. 2d 1300 (1988) (a
fact decided by a jury may be re-examined when a
reviewing court can say affirmatively that there is
no evidence to support the jury's decision).-  316
Ore., at 285, 851 P. 2d, at 1096-1097 (parallel
citations omitted).
The State's courts have shown no reluctance to strike
punitive damage awards in cases where punitive liabili-
ty is not established, so that defendant qualifies for
judgment on that issue as a matter of law.  See, e.g.,
Badger v. Paulson Investment Co., 311 Ore. 14, 28-30,
803 P. 2d 1178, 1186-1187 (1991); Andor v. United
Airlines, 303 Ore. 505, 739 P. 2d 18 (1987); Schmidt v.
Pine Tree Land Development Co., 291 Ore. 462, 631 P.
2d 1373 (1981).
 In addition, punitive damage awards may be set aside
because of flaws in jury instructions.  316 Ore., at 285,
851 P. 2d, at 1097.  See, e.g., Honeywell v. Sterling

Furniture Co., 310 Ore. 206, 210-214, 797 P. 2d 1019,
1021-1023 (1990) (setting aside punitive damage award
because it was prejudicial error to instruct jury that a
portion of any award would be used to pay plaintiff's
attorney fees and that another portion would go to
State's common injury fund).  As the Court acknowledges,
-proper jury instructio[n] is a well-established and, of
course, important check against excessive awards.-
Ante, at 17.

                     II
 In short, Oregon has enacted legal standards confining
punitive damage awards in product liability cases.
These state standards are judicially enforced by means
of comparatively comprehensive preverdict procedures
but markedly limited postverdict review, for Oregon has
elected to make factfinding, once supporting evidence is
produced, the province of the jury.  Cf. Chicago, R. I. &
P. R. Co. v. Cole, 251 U. S. 54, 56 (1919) (upholding
against due process challenge Oklahoma Constitution's
assignment of contributory negligence and assumption of
risk defenses to jury's unreviewable decision; Court
recognized State's prerogative to -confer larger powers
upon a jury than those that generally prevail-); Minne-
sota v. Clover Leaf Creamery Co., 449 U. S. 456, 479
(1981) (Stevens, J., dissenting) (observing that -alloca-
tion of functions within the structure of a state govern-
ment- is ordinarily -a matter for the State to
determine-).  The Court today invalidates this choice,
largely because it concludes that English and early
American courts generally provided judicial review
of the size of punitive damage awards.  See ante, at
5-10.  The Court's account of the relevant history is not
compelling.

                      A
 I am not as confident as the Court about either the
clarity of early American common law, or its import.
Tellingly, the Court barely acknowledges the large au-
thority exercised by American juries in the 18th and
19th centuries.  In the early years of our Nation, juries
-usually possessed the power to determine both law and
fact.-  Nelson, The Eighteenth-Century Background of
John Marshall's Constitutional Jurisprudence, 76 Mich.
L. Rev. 893, 905 (1978); see, e.g., Georgia v. Brailsford,
3 Dall. 1, 4 (1794) (Chief Justice John Jay, trying case
in which State was party, instructed jury it had author-
ity -to determine the law as well as the fact in contro-
versy-).  And at the time trial by jury was recognized
as the constitutional right of parties -[i]n [s]uits at
common law,- U. S. Const., Amdt. 7, the assessment of
-uncertain damages- was regarded, generally, as exclu-
sively a jury function.  See Note, Judicial Assessment of
Punitive Damages, the Seventh Amendment, and the
Politics of Jury Power, 91 Colum. L. Rev. 142, 156, and
n. 69 (1991); see also id., at 156-158, 163, and n. 112.
 More revealing, the Court notably contracts the scope
of its inquiry.  It asks: Did common law judges claim
the power to overturn jury verdicts they viewed as
excessive?  But full and fair historical inquiry ought to
be wider.  The Court should inspect, comprehensively
and comparatively, the procedures employed-at trial
and on appeal-to fix the amount of punitive dam-
ages.  Evaluated in this manner, Oregon's scheme af-
fords defendants like Honda more procedural safeguards
than 19th-century law provided.
 As detailed supra, at 5-6, Oregon instructs juries to
decide punitive damage issues based on seven substan-
tive factors and a clear and convincing evidence stan-
dard.  When the Fourteenth Amendment was adopted in
1868, in contrast, -no particular procedures were
deemed necessary to circumscribe a jury's discretion
regarding the award of [punitive] damages, or their
amount.-  Haslip, 499 U. S., at 27 (Scalia, J., concur-
ring in judgment).  The responsibility entrusted to the
jury surely was not guided by instructions of the kind
Oregon has enacted.  Compare 1 J. Sutherland, Law of
Damages 720 (1882) (-If, in committing the wrong com-
plained of, [the defendant] acted recklessly, or wilfully
and maliciously, with a design to oppress and injure the
plaintiff, the jury in fixing the damages may disregard
the rule of compensation; and, beyond that, may, as a
punishment of the defendant, and as a protection to
society against a violation of personal rights and social
order, award such additional damages as in their discre-
tion they may deem proper.-), with Ore. Rev. Stat.
30-925 (1991) (requiring jury to consider, inter alia,
-likelihood at the time that serious harm would arise
from the defendant's misconduct-; -degree of the
defendant's awareness of that likelihood-; -profitability
of the defendant's misconduct-; -duration of the miscon-
duct and any concealment of it-).
 Furthermore, common-law courts reviewed punitive
damage verdicts extremely deferentially, if at all.  See,
e.g., Day v. Woodworth, 13 How. 363, 371 (1852) (as-
sessment of -exemplary, punitive, or vindictive damages
. . . has been always left to the discretion of the jury,
as the degree of punishment to be thus inflicted must
depend on the peculiar circumstances of each case-);
Missouri Pacific R. Co. v. Humes, 115 U. S. 512, 521
(1885) (-[t]he discretion of the jury in such cases is not
controlled by any very definite rules-); Barry v.
Edmunds, 116 U. S. 550, 565 (1886) (in -actions for
torts where no precise rule of law fixes the recoverable
damages, it is the peculiar function of the jury to deter-
mine the amount by their verdict-).  True, 19th-century
judges occasionally asserted that they had authority to
overturn damage awards upon concluding, from the size
of an award, that the jury's decision must have been
based on -partiality- or -passion and prejudice.-  Ante,
at 8-9.  But courts rarely exercised this authority.  See
T. Sedgwick, Measure of Damages 707 (5th ed. 1869)
(power -very sparingly used-).

                      B
 Because Oregon's procedures assure -adequate guid-
ance from the court when the case is tried to a jury,-
Haslip, 499 U. S., at 18, this Court has no cause to
disturb the judgment in this instance, for Honda presses
here only a procedural due process claim.  True, in a
footnote to its petition for certiorari, not repeated in its
briefs, Honda attributed to this Court an -assumption
that procedural due process requires [judicial] review of
both federal substantive due process and state-law
excessiveness challenges to the size of an award.-  Pet.
for Cert. 16, n. 10 (emphasis in original).  But the
assertion regarding -state-law excessiveness challenges-
is extraordinary, for this Court has never held that the
Due Process Clause requires a State's courts to police
jury factfindings to ensure their conformity with state
law.  See Chicago, R. I. & P. R. Co. v. Cole, 251 U. S.,
at 56.  And, as earlier observed, see supra, at 3, the
plurality opinion in TXO disavowed the suggestion that
a defendant has a federal due process right to a correct
determination under state law of the -reasonableness-
of a punitive damages award.  509 U. S., at ___, n. 24
(slip op., at 13, n. 24).
 Honda further asserted in its certiorari petition footnote:
-Surely . . . due process (not to mention Supremacy
Clause principles) requires, at a minimum, that
state courts entertain and pass on the federal-law
contention that a particular punitive verdict is so
grossly excessive as to violate substantive due pro-
cess.  Oregon's refusal to provide even that limited
form of review is particularly indefensible.-  Pet. for
Cert. 16, n. 10.
But Honda points to no definitive Oregon pronounce-
ment postdating this Court's precedent-setting decisions
in Haslip and TXO demonstrating the hypothesized
refusal to pass on a federal-law contention.
 It may be that Oregon's procedures guide juries so
well that the -grossly excessive- verdict Honda projects
in its certiorari petition footnote never materializes.  Cf.
n. 11, supra (between 1965 and the present, awards of
punitive damages in Oregon have been reported in only
two products liability cases, including this one).  If,
however, in some future case, a plea is plausibly made
that a particular punitive damage award is not merely
excessive, but -so `grossly excessive' as to violate the
Federal Constitution,- TXO, 509 U. S., at ___, n. 24
(slip op., at 13, n. 24), and Oregon's judiciary neverthe-
less insists that it is powerless to consider the plea, this
Court might have cause to grant review.  Cf. Testa v.
Katt, 330 U. S. 386 (1947) (ruling on obligation of state
courts to enforce federal law).  No such case is before
us today, nor does Honda, in this Court, maintain other-
wise.  See 316 Ore., at 286, n. 14, 851 P. 2d, at 1097,
n. 14; n. 11, supra (size of award against Honda does
not appear to be out of line with awards upheld in
Haslip and TXO).
 To summarize:  Oregon's procedures adequately guide
the jury charged with the responsibility to determine a
plaintiff's qualification for, and the amount of, punitive
damages, and on that account do not deny defendants
procedural due process; Oregon's Supreme Court cor-
rectly refused to rule that -an award of punitive
damages, to comport with the requirements of the Due
Process Clause, always must be subject to a form of
post-verdict or appellate review- for excessiveness, 316
Ore., at 284, 851 P. 2d, at 1096 (emphasis added); the
verdict in this particular case, considered in light of this
Court's decisions in Haslip and TXO, hardly appears -so
`grossly excessive' as to violate the substantive compo-
nent of the Due Process Clause,- TXO, 509 U. S., at ___
(slip op., at 13).  Accordingly, the Court's procedural
directive to the state court is neither necessary nor
proper.  The Supreme Court of Oregon has not refused
to enforce federal law, and I would affirm its judgment.