How Common-Sense Psychology Can Inform Law and Psycholegal Research

Abstract

Over the last twenty years, the legal system has seen a variety of psycholegal research studies and advocacy efforts aimed at informing the law about legally relevant psychological issues. Psycholegal researchers have been involved in public interest litigation, legislative decision-making, criminal justice interventions, and United States Supreme Court advocacy. But while the impact of social science on law at times is substantial and occasionally even decisive, relevant research often is ignored or dismissed as irrelevant to the legal question. When research findings are cited in court opinions, they may only serve as a makeweight for the desired result. This Article outlines specific research, methodological, and legal advocacy implications of a "common-sense psychology" approach to psycholegal research and advocacy. Advocates of an empirically grounded jurisprudence call for "social science in law," " but the thesis of this Article is that psycholegal researchers must also use "law in social science," by considering the commonsense psychology ("CS-psychology") – the lay knowledge of human behavior – inherent in law. Much of law is a codification of various CS-psychologies, and social science research typically will be ignored when it fails to take into account the CS-psychology already embodied in law. The use of CS-psychology in psycholegal research and advocacy should improve the prospects for psycholegal research to influence law.

Keywords: psychology and law, social science evidence, folk psychology, law and society