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Instructing Juries On Noneconomic Contract Damages, David A. Hoffman, Alexander S. Radus

Fordham Law Review

Gathering pattern contract jury instructions from every state, we examine jurisdictions’ treatment of noneconomic damages. While the conventional account holds that there is a uniform preference against awards of noneconomic damages, we find four different approaches in pattern instructions, with only one state explicitly prohibiting juries from considering noneconomic losses. Lay juries have considerably more freedom to award the promisee’s noneconomic damages than the hornbooks would have us believe.

We substantiate this claim with an online survey experiment asking respondents about a simple contract case and instructing them using the differing pattern forms. We found that subjects routinely awarded more …