Deliberating about Dollars: The Severity Shift
University of California, San Diego
Cass R. Sunstein
Harvard Law School
University of Chicago Law School, John M. Olin Law & Economics Working Paper No. 95
How does jury deliberation affect the pre-deliberation judgments of individual jurors? In this paper we make progress on that question by reporting the results of a study of over 500 mock juries composed of over 3000 jury eligible citizens. Our principal finding is that with respect to dollars, deliberation produces a "severity shift," in which the jury's dollar verdict is systematically higher than that of the median of its jurors' predeliberation judgments. A "deliberation shift analysis" is introduced to measure the effect of deliberation. The severity shift is attributed to a "rhetorical asymmetry," in which arguments for higher awards are more persuasive than arguments for lower awards. When judgments are measured not in terms of dollars but on a rating scale of punishment severity, deliberation increased high ratings and decreased low ratings. We also find that deliberation does not alleviate the problem of erratic and unpredictable individual dollar awards, but in fact exacerbates it. Implications for punitive damage awards and deliberation generally are discussed.
Note: This paper is a substantial revision of Chicago LEC WP81, 'Are Juries Less Erratic than Individuals? Deliberation, Polarization, and Punitive Damages.'
Number of Pages in PDF File: 55
JEL Classification: C91, C92, K00
Date posted: March 8, 2000