Abstract: In most punitive damage award cases, in exchange for an added sense of legitimacy, the court entrusts the jury with interpreting the case’s facts, comprehending the judge’s instructions, and accurately applying the facts with the guidance of judicial instructions to arrive at the size of a punitive damage award. The jury, research reveals, often falls short on its end of the bargain. Because jurors often do not entirely comprehend jury instructions, jurors resort to cognitive biases that, inter alia, encourage awards substantial enough to create over-deterrence, a significant problem that forces corporations to take socially excessive precautions. Ideally, the over-deterrence created by the current design of jury instructions could be resolved by simply increasing jurors’ comprehension through the improvement of jury instructions. However, as this article will explore, the effectiveness of modifications to jury instructions is conditioned not only on jurors’ comprehension, but also on jurors’ adherence to the spirit of court procedures. The seemingly irresolvable shortcomings following from jurors’ cognitive biases direct this article to conclude that the solution to mitigating the effect of jurors’ cognitive biases on punitive damage awards is to redefine the roles of juries and judges in cases of punitive damages: juries should determine liability and judges should decide the size of an award.
Author: Alec Konstantin is a third-year at the University of California, Berkeley, majoring in Legal Studies.