New York University Public Law and Legal Theory Working Papers

Document Type



Forthcoming in Iowa Law Review, Vol. 90, No. 4, 2005


The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury’s damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors’ judgment about damage awards, and discuss how those awards might be changed if jurors were informed of the caps. Second, we discuss the potential effects that such secrecy has on perceptions of the legitimacy and fairness of the jury system, through its impact on parties, attorneys, and jurors. We conclude, in light of relevant psychological literature, that disclosure of the caps is likely to affect the jury’s decision-making process, but that non-disclosure has the potential to threaten the integrity of the jury system more broadly, because hiding the caps could result in a failure of procedural justice that would affect the integrity of the judicial process. Ultimately, we argue that disclosing the caps, particularly if included within a framework of additional information about the purpose of compensatory and punitive damages, would result in better jury awards and more public satisfaction with the judicial system.

Date of Authorship for this Version

March 2005


public law and legal theory, civil procedure, law and social science, discrimination law, employment and labor law