Nullificatory Juries

62 Pages Posted: 25 Sep 2003

See all articles by David A. Hoffman

David A. Hoffman

University of Pennsylvania Carey Law School

Kaimipono David Wenger

Thomas Jefferson School of Law

Date Written: August 17, 2003


In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries."

We discuss the features of such juries, and consider recent behavioral data relating to the common sense moral intuitions that appear to motivate nullificatory juries to reject utilitarianism. After considering these root causes, we provide a theoretical framework for analyzing the benefits these juries provide to society. We conclude with some modest suggestions for future avenues of research.

Keywords: behavioral, law and economics, jury behavior, jury nullification, criminal law, punitive damages, paternalism, rule of law

JEL Classification: K10, K13, K41

Suggested Citation

Hoffman, David A. and Wenger, Kaimipono David, Nullificatory Juries (August 17, 2003). Wisconsin Law Review, Forthcoming, TJSL Public Law Research Paper, Available at SSRN: or

David A. Hoffman (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Kaimipono David Wenger

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4347 (Phone)

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics