Can Tort Juries Punish Competently?

Punitive damages have prompted much academic and political debate during the last twenty years. In their recent book Punitive Damages, Cass Sunstein, Reid Hastie, John Payne, David Schkade, and W. Kip Viscusi present some twenty experimental studies that, they argue, show that juries award punitive damages too often, that the amounts they award are erratic and unpredictable, and that their decision-making processes are prone to various cognitive biases and other irrationalities, displaying a particular disregard of the principle of optimal deterrence. While the book offers much reliable and valuable data on how juries think about punitive damages, the authors frequently describe their results tendentiously, downplaying or omitting considerations that would support alternative interpretations of the data. Most importantly, by emphasizing deterrence to the exclusion of the retributive function that punitives are widely thought to serve, the authors present an unduly pejorative picture of juries\u27 punitive damages decision making and overstate the need for reforming the process