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Punitive DamagesHow Juries Decide$
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Cass R. Sunstein, Reid Hastie, John W. Payne, David A. Schkade, and W. Kip Viscusi

Print publication date: 2002

Print ISBN-13: 9780226780146

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226780160.001.0001

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Deterrence Instructions: What Jurors Won't Do

Deterrence Instructions: What Jurors Won't Do

(p.142) 9 Deterrence Instructions: What Jurors Won't Do
Punitive Damages

W. Kip Viscusi

University of Chicago Press

The punitive damages approach advocated by Polinsky and Shavell focuses principally on the observation that dates back to Jeremy Bentham that punishment levels should be related to the reciprocal of the probability of detection. For example, if the chance of detection is 50%, then the total penalty must be twice the value of the harm in order to create the proper incentives for deterrence on an expected value basis. This chapter tests whether jury-eligible citizens can and will, in fact, apply the Polinsky-Shavell jury instructions. A sample of jury-eligible citizens considered a series of different case scenarios in which there was some nonzero probability that the environmental transgression would not be detected. They were then given the Polinsky-Shavell punitive damages instructions and asked to assess punitive damages for their case. This exercise consequently provides a quite direct test of whether giving jurors an explicit formula for punitive damages will rationalize the punitive damages–setting process.

Keywords:   punitive damages, deterrence, probability of detection, jury-eligible citizens, Polinsky-Shavell jury instructions, jurors

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