Legal Remedies Commons^™

Nullificatory Juries, Kaimipono David Wenger, David A. Hoffman

All Faculty Scholarship

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 …