Symbolism and Incommensurability in Civil Sanctioning: Decision Makers as Goal Managers

Abstract

Factfinders in civil cases must often make a constellation of decisions, such as assigning responsibility and blame, making compensation and (sometimes) giving out punishment. These decisions are likely to evoke numerous social and moral concerns and, therefore, inevitably implicate a variety of instrumental and symbolic goals. We argue that descriptions of legal decision making that fail to consider the psychological interplay among these different goals are likely to come up short in their efforts to explicate the ways in which jurors and other factfinders make decisions in civil cases. Instead, we suggest that decision making in civil cases can profitably be thought of as a process by which decision makers attempt to maximally satisfy a wide variety of goals in parallel. In contrast to many traditional legal and economic portrayals of legal decision making which posit that decision makers can pursue single motives as instructed, we argue that jurors and other finders-of-fact deciding civil cases ought to be thought of as pursuing many different goals simultaneously. We briefly describes many of the goals that may underlie decision making in civil cases and introduces a set of basic goal management principles that define how these goals interrelate. We next describe social psychological research that suggests that legal decision makers may be motivated to pursue a variety of goals in addition to the traditional goals of determining fault, compensating plaintiffs, and deterring defendants. Different motives for distributing resources, value expressive goals and a need to restore the proper relative moral balance between the parties may all play a role in civil decision making. Finally, we propose that decision makers may attempt to simultaneously satisfy these multiple goals through a process of parallel constraint satisfaction.

Keywords: legal decision making, civil justice, constraint satisfaction, factfinder goals

JEL Classification: C45, K13, K4