In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to the common sense moral intuitions that appear to motivate nullificatory juries to reject utilitarianism. After considering these root causes, we provide a theoretical framework for analyzing the benefits these juries provide to society. We conclude with some modest suggestions for future avenues of research.
behavioral, law and economics, jury behavior, jury nullification, criminal law, punitive damages, paternalism, rule of law
Wisconsin Law Review
Hoffman, David A. and Wenger, Kaimipono David, "Nullificatory Juries" (2003). Faculty Scholarship at Penn Carey Law. 2537.