Punitive Damages, Explanatory Verdicts, and the <i>Hard Look</i>

Juries in most American jurisdictions can inflict punitive damages awards against tortfeasors who have committed especially blameworthy torts. Sometimes their awards are startlingly large-multi-billion dollar awards have become increasingly frequent. Nonetheless, juries are generally under no obligation to explain their use of this vast power—a punitive damages verdict typically takes the form of an unexplained number. Courts can and should change this practice.

Under Federal Rule of Civil Procedure 49(b) and analogous state rules, courts could require juries to return "explanatory verdicts" that set forth the bases for their punitive damages awards. Several advantages would flow from adopting this simple reform. First, taking a cue from the "hard look" doctrine of administrative law, courts could review such verdicts to ensure that juries exercise their punitive discretion reasonably and legally. In some cases, where an explanatory verdict revealed error, a court could correct it efficiently by asking the jury to reconsider in light of supplemental instructions.

Second, punitive damages awards are supposed to "send messages"; these messages would be clearer if juries used words as well as numbers to express them. Third, the power of civil juries to inflict punitive damages is controversial. Finding out how real juries in real cases justify their verdicts would shed light on whether they should possess this power.