Deterrence Instructions: What Jurors Won't Do

W. Kip Viscusi

in Punitive Damages

Published by University of Chicago Press

Published in print April 2002 | ISBN: 9780226780146
Published online March 2013 | e-ISBN: 9780226780160 | DOI:
Deterrence Instructions: What Jurors Won't Do

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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

Chapter.  11234 words. 

Subjects: Company and Commercial Law

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