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How Relevant is Jury Rationality?

23 Pages Posted: 4 Jun 2003  

David A. Hoffman

University of Pennsylvania Law School; Cultural Cognition Project at Yale Law School


This essay reviews "Punitive Damages: How Juries Decide" by Cass Sunstein, et al. The book provides a good example of a recent trend: the use of behavioralist research to justify surprisingly paternalistic legal reforms.

While critics of behavioralism often contend that its theoretical foundations are weak, this approach is unlikely to prove an effective rejoinder in the new debate about what kinds of paternalism are made permissible by human "irrationality". A better approach: (1) notes the lack of a nexus between behavioralism and the supposed emergent necessity of paternalist reforms; and (2) suggests that juror unwillingness to apply cost-benefit formula provides the true motivating force for the new paternalism in law and economics. Rather than asking if jurors act rationally (and punishing them if they will not), we should instead question what law and economists mean when they use the word "rational" as an initial matter.

JEL Classification: K1

Suggested Citation

Hoffman, David A., How Relevant is Jury Rationality?. University of Illinois Law Review, Vol. 2, 2003. Available at SSRN: or

David Hoffman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Cultural Cognition Project at Yale Law School

127 Wall St
New Haven, CT 06520
United States

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