Gathering pattern contract jury instructions from every state,
we examine jurisdictions' treatment of noneconomic damages.
While the conventional account holds that there is a uniform
preference against awards of noneconomic damages, we find four
different approaches in pattern instructions, with only one state
explicitly prohibiting juries from considering noneconomic losses.
Lay juries have considerably more freedom to award the
promisee's noneconomic damages than the hornbooks would have us
believe.
We substantiate this claim with an online survey experiment
asking respondents about a simple contract case and instructing
them using the differing pattern forms. We found that subjects
routinely awarded more than the promisee's baseline economic
losses. In one of the categories of instruction—inwhich
contract juries are instructed to award a tort-like form of
remedy—subjects returned almost two times more in damages
than the promisee's mere expectation. The resulting
