Juries, Hindsight, and Punitive Damages Awards: Reply to Richard Lempert

article published in law reviewRichard Lempert, a Professor of Law and Sociology at the University of Michigan criticized our recent article on judge and jury performance of a punitive damage judgment task, calling it a "failure of a social science case for change." Professor Lempert's depiction of our research is confusing and incorrect. However, because we believe a reading of only the Lempert critique can lead to a substantial misunderstanding of our research and its implications, we have written a reply

Fair Questions: A Call and Proposal for Using General Verdicts with Special Interrogatories to Prevent Biased and Unjust Convictions

Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict. This Essay calls for a change: expand the use of a special findings verdict, the general verdict with special interrogatories, to every case in order to guard against prejudicial reasoning and like shortcuts. Moreover, to ensure that such a change is feasible and does not run afoul of the concerns that bind courts to the general verdict, it suggests that courts require jurors to answer special interrogatories when, but only when, they have proceeded down the path towards finding the defendant guilty, using a verdict procedure designed to retain the benefits of general verdicts while jettisoning their flawed elements and complying with current practice. That change hopefully could vastly improve our jury system and allow the jury to truly serve — in the words of the Supreme Court — as “a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’

The Silicone Gel-Filled Breast Implant Controversy: Testing the Bounds of Regulatory Intervention

Silicone gel-filled breast implants were first introduced in the United States in the 1960s and immediately gained popularity among women seeking to augment or reconstruct their breasts. However, although the Food and Drug Administration (FDA) had the authority to regulate medical devices since the 1970s, breast implants were largely unregulated until concerns about a link between the devices and connective tissue diseases surfaced in the early 1980s. In the subsequent years, thousands of plaintiffs prevailed against implant manufacturers, leading to the bankruptcy of Dow Corning and a multi-million dollar class settlement. Ultimately, the controversy resulted in a FDA ban on silicone breast implants in 1992 that still survives today. This paper examines the silicone breast implant controversy from the inception of silicone devices to the current regulatory status of breast implants in the United States. Part I describes the early uses of silicone and the introduction of silicone gel-filled breast implants in the United States. Part II examines the regulatory framework for medical devices that ultimately gave the FDA the authority to ban silicone breast implants. Part III depicts the responses to the FDA’s decision from both proponents and opponents of the use of breast implants. Parts IV and V present the scientific research concerning the safety of the devices. Finally, Part VI examines the current developments regarding silicone implants, and Part VII provides some conclusions for the future

The Anatomy of a Medical Malpractice Verdict

Anatomy of a Medical Malpractice Verdic

Hindsight Bias and Tort Liability: Avoiding Premature Conclusions

Cognitive psychologists know that judgments made in hindsight are distorted by two cognitive heuristics-hindsight bias and outcome bias. Hindsight bias makes bad outcomes seem more predictable in hindsight than they were ex ante. Outcome bias induces us to assume that people who cause accidents have been careless. Because of these biases, individuals who know that a bad outcome has occurred tend to evaluate prior conduct more harshly than they would if they were unaware of the actual outcome. In negligence actions, defendants are supposed to be judged by the reasonableness of their conduct, not by its outcome. Jurors are asked to put themselves in the shoes of the defendant at the time of the challenged conduct. However, the findings of cognitive psychology warn us that jurors who know the outcome will find it very difficult to assume a foresight perspective