Cass R. Sunstein, Damages, Norms, and Punishment, in Norms and the Law 35 (John N. Drobak ed., 2006).
Abstract: How do people make judgments about appropriate punishment? How do they translate their moral judgments into more tangible penalties? What is the effect of group discussion? And what does all this have to do with social norms? In this essay I attempt to make some progress on these questions. I do by outlining some of the key results of a series of experimental studies conducted with Daniel Kahneman and David Schkade, and by elaborating, in my own terms, on the implications of those studies. Among other things, we find that the process of group discussion dramatically changes individual views, most fundamentally by making people move toward higher dollar awards. In other words, groups often go to extremes. The point has large implications for the role of norms in deliberation and the effect of deliberation in altering norms. We also find that people's judgments about cases, viewed one at a time, are very different from their judgments about cases seen together. Making one-shot decisions, people produce patterns that they themselves regard as arbitrary and senseless. The point has large implications for the aspiration to coherence within the legal system.