y.[38] An order of the Court of Claims
attempting to reinstate a dismissed case in violation of plaintiff's
right to dismiss violates the latter's right to trial by jury and may be
corrected by mandamus.[39]

Judge and Jury

LINE DRAWN BY THE COMMON LAW

As was noted above, the primary purpose of the amendment was to preserve
the historic line separating the province of the jury from that of the
judge, without at the same time preventing procedural improvement which
did not transgress this line. Elucidating this formula, the Court has
achieved the following results: It is constitutional for a federal
judge, in the course of trial, to express his opinion upon the facts,
provided all questions of fact are ultimately submitted to the jury;[40]
to call the jury's attention to parts of the evidence he deems of
special importance,[41] being careful to distinguish between matters of
law and matters of opinion in relation thereto;[42] to inform the jury
when there is not sufficient evidence to justify a verdict, that such is
the case;[43] to direct the jury, after plaintiff's case is all in, to
return a verdict for the defendant on the ground of the insufficiency of
the evidence;[44] to set aside a verdict which in his opinion is against
the law or the evidence, and order a new trial;[45] to refuse defendant
a new trial on the condition, accepted by plaintiff, that the latter
remit a portion of the damages awarded him;[46] but not, on the other
hand, to deny plaintiff a new trial on the converse condition, although
defendant accepted it.[47]

DIRECTED VERDICTS

In 1913 the Court held, in Slocum _v._ New York Life Insurance
Company,[48] that where upon the evidence a federal trial court, sitting
in New York, ought to have directed a verdict for one party but the jury
found for the other contrary to the evidence, the amendment rendered it
improper for a federal appeals court to order, in accordance with New
York practice, the entry of a judgment contrary to the verdict; that the
only course open to either court was to order a new trial. While plainly
in accordance with the common law as it stood in 1791, the decision was
five-to-four and was subjected to a heavy fire of professional criticism
urging the convenience of the thing and the theory of the capacity of
the common law for growth.[49] It has, moreover, been impaired, if not
completely undermined by certain more recent holdings. In the first of
these,[50] in whi