If accepted, the logic of this analysis would lead to a proposal that appears radical in the
special context of American legal tradition and practice: Juries should not be assigned the
task of setting punitive damages, because they are unlikely to carry out their task appropriately
in light of the best understanding of the goal of punitive awards. It follows that the task of determining the size of awards should be turned over to judges or to some
administrative process. If a jury is used at all, its function would be to make a judgment
about the outrageousness of the defendant’s behavior, which would be used as one of
several inputs in a punitive decision that would be made by some other person or agency
(see Sunstein, Kahneman and Schkade, 1998).