What's It Worth? Jury Damage Awards as Community Judgments

TABLE OF CONTENTS INTRODUCTION I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES II. MODELS OF JURY DAMAGE AWARD DECISION MAKING III. VALUES AND DAMAGE AWARDS A. Individual Jurors' Experiences and Values B. Community Effects C. Judges Versus Juries D. Jury Damage Awards: Admittedly Imperfect Mirrors of Community Sentiment CONCLUSION "The law wisely leaves the assessment of damages, as a rule, to juries, with the concession that there are no scales in which to weigh human suffering." (1) INTRODUCTION In a recent article, The Political Puzzle of the Civil Jury, Jason Solomon questions whether the civil jury operates effectively as a political institution. (2) Civil juries are said to perform multiple political functions. They inject community perspectives and values into legal decision making. (3) They act as a check on government and corporate power. (4) They legitimize the civil justice system. (5) Finally, they promote greater civic engagement among jurors. (6) Solomon concludes, however, that these claims about the civil jury's multiple political functions are overstated and understudied. (7) He calls for more theoretical and empirical study of the civil jury's performance of its political functions. (8) This Article offers a response to Solomon's piece, providing evidence about the political dimensions of jury damage award decision making. (91) argue that the damage award is a key part of the civil jury's political activity. Indeed, in my view, it is just as significant as the political nature of the civil jury's liability judgment, which up to now has been a more frequent topic of scholarly inquiry. (10) This Article focuses on one of the dimensions Solomon identifies: the injection of community perspectives and values into legal decision making. (11) I contend that damage awards and community values are deeply intertwined. The dollars that juries award, from the compensatory amounts they grant to auto accident victims to the punitive damages they deliver against large corporations, are very much products of community views and sentiments. (12) In my view, damage awards constitute powerful political actions by the civil jury. Civil jury damage awards serve to check or endorse private power, whether it is power over one's own neighbors or over business corporations. To support my argument, I draw on theoretical accounts of jury decision making about damages, including the story model, (13) insights from cultural cognition research, (14) and a new gist model that cognitive psychologist Valerie Reyna and I have developed to explain the process of jury damage award decision making. (15) Jurors' values constitute an important component of these and other models. (16) I also describe the empirical research that documents and establishes the pervasive influence and content of community values in jury damage award judgments. (17) I. DO JURY DAMAGE AWARDS REFLECT COMMUNITY NORMS? DIFFERENT PERSPECTIVES The dollar amount of a jury damage award expresses community values in multiple ways. It reflects the socially assessed value of an injury, calibrated to take into account a specific context and the identities and circumstances of the injurer and the injured. The jury's damage award amount also incorporates the meaning of money held by community members. (18) Community judgments are reflected in awards for economic damages, noneconomic damages, and punitive damages. Solomon acknowledges that: Community norms might also dictate how much certain wrongs or injuries are worth in damages.... One could say that the level of damages is a way that the community sends a message about how bad the wrong or injury is, and this is an important part of helping constitute a community--meting out justice... is a way of articulating a community's values. (19) On this, we completely agree with each other and with the great jury scholar Harry Kalven, Jr. …