Behavioral Biology and Constitutional Analysis

59 Pages Posted: 23 Oct 2007 Last revised: 31 Mar 2014

Edwin S. Fruehwald



Behavioral biology is the next frontier for legal thought. In the next few years, behavioral biology will become as important for the analysis of legal rules as economics has been for the last several decades. To ignore the insights of behavioral biology in legal analysis is to create a legal system based on crucially incomplete information. Yet, legal scholars, following social scientists, have generally disregarded human behavior in legal analysis, instead analyzing law as a social construct. This blank slate view of the mind, however, has been thoroughly debunked. As Professor E. O. Wilson has declared, The blank-slate model could be tested empirically. It lost.

This paper will present concepts of behavioral biology that are relevant to the law, then use behavioral biology to analyze constitutional cases. Drawing on science, literature, philosophy, art, and law, this paper will introduce concepts of behavioral biology. It then will discuss behavioral biology and the Constitution in general. Finally, it will examine three areas of constitutional law in detail - takings, establishing parentage, and due process limitations on punitive damages.

Keywords: constitutional law, jurisprudence, science and the law

Suggested Citation

Fruehwald, Edwin S., Behavioral Biology and Constitutional Analysis. Oklahoma City University Law Review, Spring 2008; Hofstra Univ. Legal Studies Research Paper No. 07-32. Available at SSRN:

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