Document Type
Article
Publication Date
2003
Abstract
This essay reviews Punitive Damages: How Juries Decide by Cass Sunstein, et al. The book provides a good example of a recent trend: the use of behavioralist research to justify surprisingly paternalistic legal reforms. While critics of behavioralism often contend that its theoretical foundations are weak, this approach is unlikely to prove an effective rejoinder in the new debate about what kinds of paternalism are made permissible by human "irrationality". A better approach: (1) notes the lack of a nexus between behavioralism and the supposed emergent necessity of paternalist reforms; and (2) suggests that juror unwillingness to apply cost-benefit formula provides the true motivating force for the new paternalism in law and economics. Rather than asking if jurors act rationally (and punishing them if they will not), we should instead question what law and economists mean when they use the word "rational" as an initial matter.
Keywords
Jury decisionmaking, law & psychology, rationality, behavioral economics
Publication Title
University of Illinois Law Review
Repository Citation
Hoffman, David A., "How Relevant is Jury Rationality?" (2003). All Faculty Scholarship. 2536.
https://scholarship.law.upenn.edu/faculty_scholarship/2536
Publication Citation
2003 U. Ill. L. Rev. 507 (2003)