Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
differently from judges. One study of over 500 mock jury sessions found that the jury group
deliberation process produced radical changes in damages awards. They found that, “[a]s
compared with the median of individual predeliberation judgments, dollar awards increased after
group deliberation, often dramatically so: Among juries that voted to award punitive damages,
27% reached dollar verdicts that were as high or higher than the highest predeliberation judgment
among their own jurors.” David Schkade, Cass Sunstein & Daniel Kahneman, Deliberating
About Dollars: The Severity Shift, in PUNITIVE DAMAGES (2002) (emphasis omitted). In fact,
while moral judgments of fault did not change after deliberation, dollar amounts did.
Elsewhere, Sunstein has attributed this dollar-increasing phenomenon to the psychological
dynamics of intra-group polarization by which groups “go to extremes.” See Cass Sunstein, The
Law of Group Polarization 1, 18-19 (John M. Olin Law & Economics Working Paper No. 91,
2000).
Others have faulted juries for rejecting—and even punishing—explicit cost-benefit
reasoning through punitive damage awards. In the late 1990s, Professor Kip Viscusi surveyed
about 500 juror-eligible adults to determine how they determine damages in hypothetical cases.
He found that individuals awarded 50% larger punitive damages for companies that had
performed a cost-benefit analysis, as compared to a similarly at-fault company that did not
perform a cost-benefit analysis. In addition, individuals awarded larger punitive damages against
companies that placed a greater value on the loss of a human life, in comparison to a company
that devalued human life. Thus “companies are in the bizarre position of risking greater liability
if they place more weight on consumer safety.” W. Kip Viscusi, Corporate Risk Analysis: A
Reckless Act?, 52 STAN. L. REV. 547, 555-60 (2000).
5. Why are juries still around? If juries make the same decisions as judges, except when
juries admonish wrongdoers with extreme (and, according to many observers, unwarranted)
punitive damages, why are civil juries still around? What explains the persistence of the
American civil jury system? The Seventh Amendment, which guarantees a civil jury in federal
courts, has clear explanatory power for the federal civil jury system. But American tort law is
mostly state law, and the Seventh Amendment is not incorporated against the states and so does
not apply at all in state courts, which are the more important institutions for most tort cases. To
be sure, state constitutions have jury-trial guarantees, too. But these provisions cannot explain the
persistence of the civil jury, because state constitutions almost never entrench their provisions
against subsequent political reform. State constitutions are typically almost as easy to amend as
statutes. See Helen Herschkoff, Positive Rights and State Constitutions: The Limits of Federal
Rationality Review, 112 HARV. L. REV. 1131 (1999); G. Alan Tarr, Understanding State
Constitutions, 65 TEMP. L. REV. 1169, 1181-84 (1992).
The problem of explaining the durability of the jury grows when we look at its history.
When the Seventh Amendment was ratified, the civil jury may have been seen as “a bulwark
against tyranny.” But very quickly objections and critiques emerged. By the time of the adoption
of the Federal Rules of Civil Procedure in 1938, many scholars and judges “regarded civil juries
less as a bulwark . . . than as a nuisance.” Renee Lerner, The Rise of Directed Verdict: Jury
Power in Civil Cases Before the Federal Rules of 1938,” 81 G.W.U. L. REV. 448, 451-52 (2013).
So how did the jury survive, given such criticism? Lerner argues that the rise of jury-limiting
procedures in the nineteenth and twentieth centuries, along with substantive tort doctrines like
contributory negligence, and later the rise of a powerful summary judgment rule, narrowed the
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