The 'New' Law and Psychology: A Reply to Critics, Skeptics, and Cautious Supporters
Posted: 12 Sep 2000
In recent years, a growing number of legal scholars have begun developing novel applications of psychological research to legal issues. In particular, these scholars have found applications of the psychology of judgment and choice to issues that have heretofore been dominated by law and economics. This new work has generated criticism, both from law-and-economics scholars and from more conventional legal scholars. Critics charge that the new work in law and psychology is insensitive to context, indeterminate, relies upon an endless, seemingly ad hoc, laundry list of cognitive phenomena, and provides no normative implications that law needs. In turn, these problems make it difficult to apply the psychology of judgment and choice to practical, meat-and-potatoes legal problems, such as whether to enforce a liquidated damages clause in a contract. These charges are unfounded. The psychology of judgment and choice includes coherent theories developed from robust, empirically supported phenomena. In turn, these lead to normative implications in many, although admittedly not all legal contexts. Using the problem of liquidated damages clauses as an example, this Article shows that the psychology of judgment and choice is far clearer and deterministic than has been suggested by critics. Furthermore, the new law and psychology leads legal scholars to look at how people respond to the law in novel and important ways that can only improve legal scholarship.
JEL Classification: K00
Suggested Citation: Suggested Citation