The opinion
LUTTIG, Circuit Judge,
concurring in part and dissenting in part:
A panel of this court in Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991), misread the Supreme Court’s recent decision in Pacific Mut. Life Ins. Co. v. Haslip, — U.S. -, 111 S.Ct. 1032 , 113 L.Ed.2d 1 (1991), constitutionalized under the Fifth and Fourteenth Amendments the “factors” that Alabama courts may but are not required to consider when reviewing punitive damages awards for excessiveness, effectively incorporated the equivalent of those seven factors into South Carolina law and, to avoid a perceived violation of the Seventh Amendment, required that federal courts instruct juries as to these factors when applying the law of South Carolina in federal diversity cases. Today, the court en banc embraces this misreading of Haslip and imposes those same factors on yet another state, the Commonwealth of Virginia, effectively directing that it, too, in the name of due process, *1425 incorporate these factors into its law on punitive damages and that federal juries in this state as well be instructed to apply these factors.
As in Mattison , the substance of the court’s holding is neither acknowledged by the court nor immediately apparent from its opinion. Its holding effectively invalidates Virginia’s punitive damages scheme under the Fourteenth Amendment and imposes upon the state a federal common law. Rather than acknowledge that this is its holding, the court discerns a “suggestion], at least” of “an amenability of the Virginia courts to the use of a Haslip-type inquiry.” Ante at 1418. Then, on the strength of this “suggestion,” it concludes that Virginia law must be understood to incorporate the Haslip factors. The court is unable to find an “amenability” in Virginia law to all of the factors that it imposes on the state. It imposes these factors nonetheless, on the “expectation” that Virginia would read Haslip , as this court did in Mattison , to require their consideration and that the state would “amplify” its law accordingly, see id.
Notwithstanding the court’s effort to portray it otherwise, the fact remains that Virginia did not require, prior to today, consideration of the factors that the court now impresses upon the Commonwealth. As the court itself ultimately must acknowledge, “the law [of Virginia] would not necessarily appear explicitly to direct in each case the same sort of review deemed acceptable by the Supreme Court in Has-lip.” Id. In reality, therefore, the court sub silentio invalidates the Commonwealth’s punitive damages scheme under the Fourteenth Amendment because it does not require consideration of the seven Has-lip factors (or their equivalent), imposes these factors on the state under the same authority, and then directs federal courts pursuant to the Fifth and Seventh Amendments to instruct federal juries as to the factors newly imposed on the state. 1
Virginia’s punitive damages scheme, when applied by federal courts sitting in diversity cases, provides an array of constraints that focus the jury’s discretion on the legitimate state objectives of punishment and deterrence. The jury receives instructions that are in principle indistinguishable from (and indeed more constraining than) those explicitly upheld in Haslip . The district court reviews punitive damages awards for excessiveness under Federal Rules of Civil Procedure 50 and 59, applying, in accordance with the Supreme Court’s decision in Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257 , 109 S.Ct. 2909 , 106 L.Ed.2d 219 (1989), Virginia’s own standards for evaluating the reasonableness of such awards. We, in turn, review the district court’s determinations for abuse of discretion. And finally, and not insignificantly, no punitive damages award may exceed $350,000. Va.Code Ann. § 8.01-38.1. This “panoply of procedural protections,” see Haslip, — U.S. at -, 111 S.Ct. at 1046 , amply satisfies arguably the only due process standard set forth by the Court in Haslip — namely, that punitive damages awards be rationally related to the legitimate state objectives of punishment and deterrence. 2
*1426 I would sustain the Commonwealth’s punitive damages scheme as applied by the district court below. I respectfully dissent from the court’s sub silentio invalidation of that scheme as violative of the Fourteenth Amendment as well as from its order under the Fifth and Seventh Amendments that federal district courts read into the law of Virginia the “factors” constitu-tionalized by this court in Mattison and instruct federal juries to consider these factors when awarding punitive damages.
I.
The court’s decision was foreordained by its misreading of Haslip in Mattison as holding that trial or appellate court review of punitive damages awards for “excessiveness” is insufficient as a matter of federal constitutional law — regardless of the constraints on the jury’s discretion — and that the Due Process Clauses of the Fifth and Fourteenth Amendments require application of the factors that Alabama courts are permitted to consider, or their equivalent, when that state’s courts conduct excessiveness review of punitive damages awards. See 947 F.2d at 105 (“[T]he inference is left [in Haslip ] that the broad discretion given juries under the laws of Vermont and Mississippi is not adequately checked by court review based on a standard of excessiveness.”); id. at 106 (“Apparently, the Court in Haslip concurs in [our] assessment that a standard of ‘excessiveness’ is not meaningful.”) (citing Haslip , — U.S. at -, 111 S.Ct. at 1045 n. 10). The court’s misreading of Haslip is traceable directly to its misunderstanding of Haslip's footnote 10, and the opinion text upon which the footnote elaborates. In that passage, the Supreme Court observed that the Alabama Supreme Court’s application of “the detailed substantive standards it has developed for evaluating punitive awards” distinguished the Alabama scheme from the Vermont and Mississippi schemes about which various Justices had “expressed concern” in Browning-Ferris and Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71 , 108 S.Ct. 1645 , 100 L.Ed.2d 62 (1988), respectively. — U.S. at - & n. 10, 111 S.Ct. at 1045 & n. 10. The Mattison court understood the Supreme Court in this footnote to be distinguishing Alabama’s scheme from Vermont’s and Mississippi's based on the existence of the seven factors, and on this understanding it read the footnote to impose a constitutional requirement that those factors be applied when awarding punitive damages. 3
*1427 The Mattison court’s misreading of footnote 10 is somewhat understandable, given that the Court cites to Central Ala. Elec. Coop. v. Tapley, 546 So.2d 371, 377-78 (Ala.1989)—a case that recites in some detail the seven factors that may be considered by the Alabama courts — as the authority for its observation that Alabama applies “detailed substantive standards” and, given further, that immediately thereafter the Court states that “[t]his” distinguishes Alabama’s from Vermont’s and Mississippi’s schemes. It is apparent, however, from reading the balance of footnote 10 and the entire textual passage in which footnote 10 appears that the Court distinguished Alabama’s scheme not on the basis that Alabama’s courts are required to consider the seven factors but, rather, on the basis that its courts “review to ensure that [punitive damages] award[s] do[] ‘not exceed an amount that will accomplish society’s goals of punishment and deterrence,’ ” — U.S. at -, 111 S.Ct. at 1045 (quoting Green Oil Co. v. Hornsby, 539 So.2d 218, 222 (Ala.1989)). The Court, for example, went on to explain following the sentence in which it refers to Alabama’s detailed standards that:
[i]n particular, [the Alabama Supreme Court] makes its review to ensure that the award does ‘not exceed an amount that will accomplish society’s goals of punishment and deterrence.’ This appellate review makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.
Id. (citations omitted) (emphasis added). It then contrasted in footnote 10 Alabama’s scheme with those in Vermont and Mississippi, where awards are reviewed, respectively, only for “manifest[] and gross[]” excessiveness and for “passion, bias and prejudice on the part of the jury so as to shock the conscience.” Id. — U.S. at - n. 10, 111 S.Ct. at 1045 n. 10. 4
That the review to ensure that awards do no more than further the state’s twin interests of punishment and deterrence was the distinguishing feature, and not the existence of the seven-factor inquiry, is confirmed by the fact that not even in Alabama is consideration of the seven factors required 5 — a fact of which the Court expressly took note. See, e.g., Haslip, — U.S. at -, 111 S.Ct. at 1045 (these factors are simply ones that “could be taken into consideration”) (emphasis added); id. at -, 111 S.Ct. at 1044 (“among the factors deemed ‘appropriate for the trial court’s consideration’ are ...") (quoting Hammond v. City of Gadsden, 493 So.2d 1374, 1379 (Ala.1986)); see also id. — U.S. at -, 111 S.Ct. at 1061 (O’Connor, J., dissenting) (“The trial court and other reviewing courts may — but are not required to — take these factors into consideration in determining whether a punitive damages award is excessive.”) (citation omitted) (emphasis added). Indeed, the Alabama Supreme Court’s opinion reviewed in Haslip , *1428 although post-dating both Central Alabama and Green Oil, neither cited these cases nor mentioned the seven factors outlined in those cases 6 — also a fact of which the Court was aware. 7 Therefore, if the Supreme Court had held that consideration of the seven factors or their equivalent was constitutionally required, it would have had to reverse and remand rather than affirm the Alabama Supreme Court decision under review.
In sum, the panel in Mattison simply misread the Supreme Court’s decision in Haslip as requiring, as a matter of constitutional law, consideration of the seven so-called Haslip factors when reviewing punitive damages awards.
II.
Although in holding that consideration of the seven Haslip factors is constitutionally required, the court assumes that appellate review is mandated under the Due Process Clause, Haslip does not so hold. If appellate review is required, however, the exces-siveness review conducted by the federal courts under Rules of Civil Procedure 50 and 59 amply satisfies the requirements of due process.
A.
The majority adopts Mattison’s unstated assumption that appellate review of jury-awarded punitive damages is essential under the Fifth and Fourteenth Amendments, even if instructions channel a jury’s discretion sufficiently to satisfy due process. 8 *1429 Such an assumption finds some support in the Haslip Court’s emphasis on the presumptive constitutionality of the common law methodology for imposing punitive damages, which includes judicial review for reasonableness. See Haslip, — U.S. at -, 111 S.Ct. at 1042 ; id. at -, 111 S.Ct. at 1043 (“In view of this consistent history, we cannot say that the common-law method for assessing punitive damages is so inherently unfair as to deny due process and be per se unconstitutional.”). It is not entirely clear that appellate review is invariably required under the Due Process Clause, however. The Supreme Court in Haslip did not hold that review of a jury’s punitive damages award is constitutionally necessary. The Court simply upheld Alabama’s punitive damages scheme as a whole, two features of which happened to be review by both the trial courts and the Alabama Supreme Court. It nowhere stated that each feature of the state’s scheme was constitutionally required, and it repeatedly emphasized that its decision was narrowly confined only to whether Alabama’s scheme (and perhaps only the single award at issue in that case) comported with the requirements of due process: “We need not, and indeed we cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. — U.S. at -, 111 S.Ct. at 1043 ; see also id. (“[O]ur task today is to determine whether the Due process Clause renders the punitive damages award in this case constitutionally unacceptable.”) (emphasis added); id. (“With these concerns in mind, we review the constitutionality of the punitive damages awarded in this case.”) (emphasis added). Indeed, Justice Scalia, writing separately, criticized the Haslip majority for announcing only a “jury-like verdict [that] provides no guidance as to whether any other procedures are sufficiently 'reasonable/ and thus perpetuating] the uncertainty that our grant of certiorari was intended to resolve.” Id. at ---, 111 S.Ct. at 1046-47 (Scalia, J., concurring in the judgment).
I question whether appellate review is constitutionally required, at least where as here, the jury not only received specific instructions that substantially constrained its discretion, 9 but also was statutorily limited in the amount of punitive damages it could award. 10 The Supreme Court stated in Haslip that “[a]s long as the [jury’s] discretion is exercised within reasonable constraints, due process is satisfied.” — U.S. at -, 111 S.Ct. at 1044 . It specifically approved the state’s jury instructions because they “confined [the jury’s discretion] to deterrence and retribution,” and “enlightened the jury as to the punitive *1430 damages’ nature and purpose.” Id. 11 And it characterized the Alabama Supreme Court’s review as “an additional check on the jury’s or the trial court's discretion.” Id. at -, 111 S.Ct. at 1045 .
B.
If some form of appellate review is constitutionally required, however, I believe that a review for “excessiveness” under Federal Rules of Civil Procedure 50 and 59 (which in turn is informed by the relevant state law), followed by review in the court of appeals for abuse of discretion, fully satisfies the strictures of the Due Process Clause — at least where, as here, the jury was adequately instructed as to the limited retributive and deterrent purposes of punitive damages and its award was subject to Virginia’s statutory ceiling. 12 In a federal diversity of citizenship case, the district court reviews punitive damages awards for excessiveness, on either a motion for judgment as a matter of law under Rule 50 or a motion for a new trial under Rule 59. That excessiveness inquiry is framed by the law of the forum state, here Virginia. Writing for a unanimous Supreme Court in 1989, Justice Blackmun set forth the guidelines for this inquiry:
In a diversity action, or in any other lawsuit where state law provides the basis of decision, the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law. Federal law, however, will control on those issues involving the proper review of the jury award by a federal district court and court of appeals.
In reviewing an award of punitive damages, the role of the District Court is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. The Court of Appeals should then review the District Court’s determination under an abuse-of-discretion standard.
Browning-Ferris, 492 U.S. at 278-79 , 109 S.Ct. at 2922 (footnote and citations omitted). 13 The district court thus applies “the proper state-law standard in considering whether the verdict returned was excessive,” id. at 280 (emphasis added), by reference to the appropriate federal standard of review (i.e., the review dictated by Rules 50 and 59). 14 See, e.g., American Business *1431 Interiors, Inc. v. Haworth, Inc., 798 F.2d 1135, 1146 (8th Cir.1986) (“We are guided by the law of the forum state in weighing the excessiveness of a verdict.’’); Mason v. Texaco, 948 F.2d 1546, 1559-60 (10th Cir.1991) (same), cert. denied, — U.S. -, 112 S.Ct. 1941 , 118 L.Ed.2d 547 (1992). And the court of appeals thereafter reviews the district court’s judgment for abuse of discretion.
This review by the district court and court of appeals, provided the courts consider only the evidence presented to the jury and judicially noticeable facts, see Fed. R.Evid. 201, is unassailable under the Seventh Amendment. 15 Whether a verdict is “excessive” (i.e., whether under Rule 50 there is substantial evidence to support the verdict or whether under Rule 59 the verdict is against the clear weight of the evidence) is a legal question for the court, not a factual question for the jury. See, e.g., Kennon v. Gilmer, 131 U.S. 22, 27-30 , 9 S.Ct. 696, 698-99 , 33 L.Ed. 110 (1889) (approving remittitur or new trial order when a court determines damages are legally excessive and recognizing such action as being consistent with the Seventh Amendment); Aetna Casualty & Sur. Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.1941) (Rule 50 “ ‘does not do away with but emphasizes the necessity of a motion for a directed verdict to raise the legal question whether the evidence is sufficient.’ ”) (emphasis added) (quoting Baten v. Kirby Lumber Corp., 103 F.2d 272, 274 (5th Cir.1939)); Fed.R.Civ.P. 50(a), 1991 advisory committee’s note (“[AJction taken under the rule is a performance of the court’s duty to assure enforcement of the controlling law and is not an intrusion on any responsibility for factual determinations conferred on the jury by the Seventh Amendment or any other provision of federal law.”) (emphasis added); see also Browning-Ferris, 492 U.S. at 278-80 , 109 S.Ct. at 2922-23 ; cf. Grunenthal v. Long Island R.R., 393 U.S. 156, 159 , 89 S.Ct. 331, 333 , 21 L.Ed.2d 309 (1968) (“ ‘We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law.’ ”) (quoting Dagnello v. Long Island R.R., 289 F.2d 797, 806 (2d Cir.1961)). 16
The district court does not, contrary to the apparent belief of the majority, “find facts” when it conducts review under Rules 50 and 59; it simply canvasses the record evidence to ascertain whether, when mea *1432 sured against the state’s legal standards, there was sufficient evidence introduced to support the jury’s award. (It is because its role is so confined, that the reviewing court cannot simply instate an award in an amount that it deems appropriate but, rather, can only grant or deny a motion for judgment or a motion for new trial.) In fact, the Supreme Court flatly rejected in Arkansas Valley Land & Cattle Co. v. Mann, the contention that a district court’s review of damages for excessiveness “is in effect a re-examination by the court, in a mode not known at the common law, of facts tried by the jury” and therefore violates the Seventh Amendment. 130 U.S. 69, 72-74 , 9 S.Ct. 458, 458-59 , 32 L.Ed. 854 (1889). Said the Court, “[i]t cannot be disputed that the court is within the limits of its authority when it sets aside the verdict of the jury and grants a new trial where the damages are palpably or outrageously excessive.” Id. at 74 , 9 S.Ct. at 459. Tasks such as those performed under Rules 50 and 59 are the essence of much of federal district court and appellate review. If this task is constitutionally invalid, as the majority holds, then many of the appellate review functions now performed by the federal courts are likewise constitutionally infirm.
III.
Because I would hold that Virginia’s punitive damages scheme, as applied by the federal courts, is not unconstitutional, I would review only whether the district court abused its discretion in denying Hugo’s Skateway’s motion for a new trial or remittitur. I am unable to conclude that it did. The jury found that Hugo’s Skate-way intentionally discriminated against Johnson, and that Johnson suffered actual damages in the amount of $25,000. Punitive damages seven times this amount of compensatory damages in a case of intentional racial discrimination is not so excessive as to be wholly without reasonable foundation. Racial discrimination is antithetical to the most fundamental principles of the Constitution, and juries should be given wide berth to express their justified intolerance of its persistence.
IV.
I am, like many others, troubled by the increasing number of punitive damages awards that are almost incomprehensible in their magnitude. The effect that these awards have had, and could well continue to have, on our national economy is inestimable. The question before the court, however, is one of constitutional law, not policy. The Supreme Court has already held that punitive damages may be awarded consistently with the Constitution.
The court today holds that the difference between a constitutional and an unconstitutional punitive damages scheme is whether the court reviewing punitive awards is required to weigh the particular factors that may be considered by the Alabama courts (in which event the scheme is constitutional) or whether it reviews for excessiveness, under Federal Rules of Civil Procedure 50 and 59 (in which event it is unconstitutional). I fail to understand how this is a difference of constitutional dimension, and I do not read the Supreme Court’s decision in Haslip to suggest otherwise. I believe the court in Mattison simply misread Has-lip. I would rectify that error by overruling Mattison , upholding the Virginia punitive damages scheme as currently applied by federal courts, and affirming the jury’s punitive damages award.
Accordingly, while I join in Parts I, II, and IV of the court’s opinion, I dissent from its holding in Part III.
. The Mattison court imposed these same factors on South Carolina in precisely the way that it herein imposes them on the state of Virginia. It held that federal juries in South Carolina must consider four factors "derived from” Has-lip and from a case that it construed as requiring that “trial courts in South Carolina ... parrot the review conducted by the Alabama Supreme Court in Haslip." 947 F.2d at 109 -10 (citing Gamble v. Stevenson, 305 S.C. 104 , 406 S.E.2d 350 (1991)). Gamble did not require that the courts of South Carolina consider the Haslip factors when reviewing punitive damages awards; it merely approved those factors for consideration by the courts in their discretion. Compare Gamble, 406 S.E.2d at 354 (trial court "may consider” certain factors) with Mattison, 947 F.2d at 109 (Gamble factors “intended to be the basis for all awards of punitive damages in South Carolina”).
. See Haslip, — U.S. at -, 111 S.Ct. at 1042 (emphasizing that Court “more than once has approved the common-law method for assessing punitive awards," pursuant to which the jury determines the amount of the award after being instructed to "consider the gravity of the wrong and the need to deter similar wrongful conduct” and the jury's award “is then reviewed by trial and appellate courts to ensure that it is reasonable”); see also id. at -, 111 S.Ct. at 1043 (no bright line between the constitutional and the unconstitutional can be drawn, but “general *1426 concerns of reasonableness and adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus"); id. at -, 111 S.Ct. at 1045 (Alabama’s "appellate review makes certain that the punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition”).
. The predicate for this misreading of the footnote was the court’s earlier mistaken assumption that Alabama’s jury instructions were of little, if any, relevance to the Supreme Court’s decision to uphold Alabama’s scheme and that the scheme was saved only by the state’s post-verdict reviews. See, e.g., Mattison, 947 F.2d at 99 (”[T]he Supreme Court turned its attention to the post-verdict process, passing lightly over the pre-verdict process which gave rise to the verdict in the first place."); id. ("This unusual approach of emphasizing post-verdict review to the extent of perhaps slighting a review of the pre-verdict process, ... raises significant questions....") (citation omitted); see also ante at 1415 (referring to Alabama’s post-verdict review as the "process which proved so critical in Has-lip").
This assumption was in turn based upon the court’s belief that “[Alabama’s] instructions to the jury were not significantly different from the [review] schemes [in Vermont and Mississippi],” under which awards would be invalidated, respectively, only if they were “manifestly and grossly excessive” or “evincefd] passion, bias and prejudice ... so as to shock the conscience." See Mattison, 947 F.2d at 99 (citing Haslip , — U.S. at - n. 10, 111 S.Ct. at 1045 n. 10). In so believing, the Mattison court failed to appreciate the significance to the Supreme Court of the fact that in Alabama, juries are instructed that the purposes of punitive damages are " ‘to punish the defendant’ and ‘for the added purpose of protecting the public by [deterring] the defendant and others from doing such wrong in the future.’" Haslip , — U.S. at - n. 1, 111 S.Ct. at 1037 n. 1 (quoting App. at 105-06). The Supreme Court approved of the Alabama instructions precisely because they included this explanation of the nature and purposes of punitive damages.
. This reading of footnote 10 as referencing merely the review for excessiveness in relation to the state’s objectives of punishment and deterrence, and not in particular Alabama’s seven factors, is reinforced by the fact that the Justices whom the note references as having "expressed concerns” about the Vermont and Mississippi schemes in Bankers Life & Casualty and Browning-Ferris did not in any sense focus upon the presence or absence in those schemes of a requirement that reviewing courts be guided by specific factors in their assessments of punitive awards, as in Alabama. Rather, they expressed only the general concern in those cases that a punitive damages scheme might, in an appropriate case, be subject to a due process challenge. See Browning-Ferris, 492 U.S. at 280 , 109 S.Ct. at 2923 (Brennan, J., joined by Marshall, J., concurring); id. at 283 , 109 S.Ct. at 2924 (O’Con-nor, J., joined by Stevens, J., concurring in part and dissenting in part); Bankers Life & Casualty, 486 U.S. at 87 , 108 S.Ct. at 1655 (O’Connor, J., joined by Scalia, J., concurring in part and concurring in judgment); see also Haslip, — U.S. at -, 111 S.Ct. at 1038-39 ,
. See Central Ala., 546 So.2d at 377 ("[I]n making the determination of whether the verdict is excessive (or inadequate), a trial court is authorized to consider the following non-exclusive list of factors....”) (emphasis added); Green Oil, 539 So.2d at 222-24 (stressing "society’s goals of punishment and deterrence” as constraints on the amount of punitive damages, while listing the seven factors as ones that “could be taken into consideration”) (emphasis added).
. The Alabama Supreme Court simply held that the state’s circuit court had faithfully followed the only mandate of Hammond , which is to "reflect in the record the reasons for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages,” see Hammond 493 So.2d at 1379 , and that the evidence supported its findings. Pacific Mut. Life Ins. Co. v. Haslip, 553 So.2d 537, 543 (Ala.1988) ("These guidelines ... require the trial judge to reflect on the record his or her reasons for either interfering or not interfering with a jury’s verdict.") (citations omitted); Hammond, 493 So.2d at 1379 (“We simply now require the trial courts to state for the record the factors considered in either granting or denying a motion for new trial based upon the alleged excessiveness or inadequacy of a jury verdict.”). The Supreme Court itself recognized that Hammond requires only that a record statement of the trial court’s reasons be made. See — U.S. at -, 111 S.Ct. at 1044 (quoting requirement and listing factors "deemed [by Alabama as] 'appropriate for the trial court’s consideration’ ”) (quoting Hammond, 493 So.2d at 1379 ).
The Alabama Circuit Court, whose decision was reviewed by the Alabama Supreme Court, did not even apply all of the four Hammond factors. Of those factors, the Circuit Court considered only the retributive and deterrent effects of the award. It did not consider the impact of the awards on the individual defendants or on innocent third parties. Haslip v. Pacific Mut. Life Ins. Co., No. CV82-2453 (Ala.Cir.Ct. Dec. 11, 1987), reprinted in Joint Appendix at A14-A15, — U.S. -, 111 S.Ct. 1032 , 113 L.Ed.2d 1 (No. 89-1279).
. The Court noted the historical fact that "before its ruling in the present case, the Supreme Court of Alabama had elaborated and refined the Hammond criteria_” — U.S. at -, 111 S.Ct. at 1045 (citing Green Oil and Central Alabama), but it expressly observed that the Alabama Supreme Court had applied only the Hammond standards. Id. — U.S. at -, 111 S.Ct. at 1046 ; see infra note 12. Indeed, the Court seemed to suggest that retribution and deterrence were the only constitutionally relevant factors. Id. — U.S. at -, 111 S.Ct. at 1046 (noting that Alabama Supreme Court "brought to bear all relevant factors recited in [Green Oil v. ] Hornsby") (emphasis added); see supra note 6.
.This assumption — and to a large extent the majority’s conclusion that consideration of the seven Haslip factors is required when awarding and reviewing punitive damages — derives in part from its belief that Alabama’s scheme as a whole only barely passed constitutional muster. See ante at 1414 (the Supreme Court in Haslip “concluded that Alabama’s scheme, with its particular procedural and substantive protections, did not 'cross the line into the area of constitutional impropriety’.”) (quoting Haslip, — U.S. at -, 111 S.Ct. at 1046 ); id. at 1414 ("[T]he Supreme Court concluded [in Haslip ] that punitive damages awarded in Alabama may have been close to the line of constitutional impropriety but did not ‘cross the line’.”) (quoting Haslip, — U.S. at -, 111 S.Ct. at 1046 ).
The Supreme Court, however, never suggested that Alabama’s scheme bordered on the unconstitutional; it said only that the particular award there under review did “not cross the line into the area of constitutional impropriety.” Haslip, — U.S. at -, 111 S.Ct. at 1046 ; see also id. (Scalia, J., concurring in the judgment) ("[The Court] says that Alabama’s particular procedures (at least as applied here) are not so ‘unreasonable’ as to ‘cross the line into the area of constitutional impropriety’.”) (quoting — U.S. at -, 111 S.Ct. at 1046 ). At most, therefore, the Court may have considered vacating as excessive the particular jury award against Pacific Mutual. It ultimately decided against even this course because “the award ... did not lack objective criteria.” Id. (emphasis added).
. The instructions given the jury in this case were even more detailed and better suited to channeling the jury’s discretion than were the instructions given to the jury in Haslip, which the Supreme Court explicitly approved. — U.S. at -, 111 S.Ct. at 1044 . The jury was instructed that the purpose of punitive damages is “to punish the wrongdoer for some extraordinary conduct and to serve as an example and warning to others not to engage in such conduct”; that the decision "[wjhether or not to make any award of punitive and exemplary damages” is "a matter within the province of the jury”; that "the amount of such extraordinary damages, when awarded, must be fixed with calm discretion and sound reason and must never be awarded or fixed in amount because of any sympathy or bias or prejudice with respect to any party to the case”; and that the jury could only award punitive damages if “the defendant's act or omission which proximately caused actual damage to the plaintiff was maliciously or wantonly or oppressively done.” The court went on to provide definitions of "maliciously,” "wantonly," and “oppressively." J.A. at 400-02; see also post at 1442-1443 (Hamilton, J., dissenting).
. See Va.Code Ann. § 8.01-38.1. While the majority accords dispositive constitutional significance to the seven Haslip factors, it essentially dismisses as inconsequential Virginia’s statutory cap on punitive damages. See ante at 1415 n. 6. In Haslip itself, the Court noted that Alabama had recently enacted a $250,000 statutory cap on punitive damages, — U.S. at - n. 9, 111 S.Ct. at 1044 n. 9. The existence of this cap undoubtedly would have entered into the Court's constitutional calculus had the cap been in effect when the cause of action in Haslip arose. See id. at -, 111 S.Ct. at 1064 (O’Connor, J., dissenting) (suggesting legislative caps "could function as meaningful constraints on jury discretion”).
. The Court explained that the instructions had “accommodated" the defendant’s due process interest in “rational decisionmaking." See — U.S. at -, 111 S.Ct. at 1044 . It emphasized that “[t]he discretion allowed under Alabama law in determining punitive damages is no greater than that pursued in many familiar areas of the law as, for example, deciding ‘the best interests of the child,’ or ‘reasonable care,’ or ‘due diligence,’ or appropriate compensation for pain and suffering or mental anguish.” Id.
. The retribution and deterrence factors comprise the essence of the Hammond inquiry that Alabama trial courts are authorized to conduct when reviewing jury-awarded punitive damages awards. (The only other specific factors are the " 'impact upon the parties,’ and ... ‘on innocent third parties,’ ” and the latter is recited only as a possible example of “other” factors that might appropriately be considered. See Haslip, — U.S. at -, 111 S.Ct. at 1044 (quoting Hammond, 493 So.2d at 1379 .)) The Supreme Court held in Haslip that a review including consideration of these factors was "meaningful and adequate.” — U.S. at -, 111 S.Ct. at 1044 .
. The majority does not even cite Browning-Ferris. It is cited in Mattison , but only for the unexceptional propositions that federal district court review of jury verdicts consists of the application of state substantive law and federal procedural law, and that a federal district court can grant a new trial "only under the standards permitted by federal law.” 947 F.2d at 99, 108 . The Court’s language to the effect that the district court in that case had "properly instructed the jury on Vermont law ... and applied the proper state-law standard in considering whether the verdict returned was excessive" is nowhere cited. See Browning-Ferris, 492 U.S. at 280 , 109 S.Ct. at 2923 .
. On a motion for judgment as a matter of law, the district court reviews for substantial evidence. See Defender Indus. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 505 (4th Cir.1991) (en banc). On a motion for new trial, the district court must sustain the verdict unless it is “ 'against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice.' ” Id. at 507 (quoting Johnson v. Parrish, 827 F.2d 988, 991 (4th Cir.1987)).
. The majority concludes otherwise: “If [Has-lip ] were later to arise in federal court in Alabama, ... federal procedure would require that these factors be given to the jury for consider-ation_" Ante at 1416 n. 9. The Eleventh Circuit apparently disagrees. See, e.g., Braswell v. Conagra, 936 F.2d 1169, 1176 (11th Cir.1991) (district court properly reviewed verdict under the Hammond factors); American Employers Ins. Co. v. Southern Seeding Servs., Inc., 931 F.2d 1453, 1458 (11th Cir.1991) (failure of district court to consider factors necessitated remand).
. The sub-inquiries that might be undertaken by the federal courts under Virginia law are themselves not even "factual” in the same sense as typical jury questions in the common law tradition: the proportionality of the punitive award to the underlying compensatory award; the avoidance of double recovery; the financial impact upon the defendant; and a consideration of other civil and criminal penalties leveled on the defendant. As Judge Hamilton observes, "[tjhere is simply no reason” why a federal district court may not measure an award against these standards in determining whether the award is excessive. Post at 1447.
Because its review is limited to the record evidence and judicially noticeable facts, however, even explicit application of standards more akin to those applied in Alabama would not present a problem under the Seventh Amendment. See, e.g., Cash v. Beltmann N. Amer. Co., 900 F.2d 109 (7th Cir.1990). In Beltmann, after noting that under Illinois law three factors, including “the nature and enormity of the wrong,” inform the proper amount of punitive damages in that state, the Seventh Circuit reversed a district court for abuse of discretion and itself reviewed the verdict under the factors, concluding that "[t]he first factor instructs us to focus on the nature and enormity of the wrong.... Therefore, the punitive damages award should be set aside if it exceeds the amount necessary to deter and punish_” Id. at 111 ; see also Robertson Oil Co., Inc. v. Phillips Petroleum Co., 779 F.Supp. 994, 996-97 (W.D.Ark.1991) (review by district court of punitive damages award using specific factors developed by Arkansas Supreme Court to give contours to a "shock-the-conscience” standard).