32 Law & Psychol. Rev. 163 (2008)
Rational Jury Assessment of Damages through Neuroeconomics

handle is hein.journals/lpsyr32 and id is 173 raw text is: RATIONAL JURY ASSESSMENT OF DAMAGES THROUGH
Classical Greek philosopher Plato described people as driving a cha-
riot drawn by two horses, reason and passions, explaining one of the
most fundamental distinctions in human thought processes.' American
jurisprudence has often focused on a similar dichotomy, with the reason-
based dictates of law on one hand and an intuition-based sense of jus-
tice on the other.2 Whether an individual analyzes a problem through the
application of reason based legal rules or reacts to it as an intuitive matter
of justice can yield very different results.3 With human reasoning resting
on these two distinct legs, is it possible for an American jury to act realis-
tically and rationally when assessing damages?
To act rational can be defined in many different ways, but, general-
ly, it is considered a decision process that results in the selection of the
'best' method of accomplishing a goal. ,4 Traditional views of the law have
associated rationality with cognitive and rule-based thinking and a distrust
of emotion and intuition and have considered some juries' inability to ap-
ply clear reasoning in their decisions.5 Other legal minds have argued the
importance of emotion and intuition in normative judgment and making the
best decision, citing human intuition as the basis for public policy and laws
already created.6 Whatever the best combination of reason and intuition
may be, lawmakers and court systems can benefit greatly from understand-
ing how juries make decisions and may be able to use that information to
better shape laws, court rules, and jury instructions.
Neuroeconomics represents an important scientific field that can help
courts determine whether jurors can be reasonably relied upon to assess
damages that are rationally related to the defendants' actions. Using brain
scanning technologies, neuroeconomics can identify the parts of the brain
activated in certain types of decisions and compare this information with
what neuroscientists already know regarding the brain's corresponding
1.  Colin Camerer et al., Neuroeconomics: How Neuroscience Can Inform Economists, XLIII J.
ECON. LITERATURE 9, 18 (2005).
2.  Oliver R. Goodenough & Kristin Prehn, A Neuroscientific Approach to Normative Judgment
in Law and Justice, in LAW & THE BRAIN 77, 80 (Semir Zeki & Oliver Goodenough eds., 2006).
3.  Id.
4.  Terrence Chorvat & Kevin McCabe, Neuroeconomics and Rationality, 80 CHI.-KENT L. REV.
1235, 1236 (2005).
5.  Goodenough & Prehn, supra note 2, at 82.
6.  Id.

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