Outpsyched: The Battle of Expertise in Psychology-Informed Law
36 Pages Posted: 18 Feb 2016 Last revised: 31 Oct 2019
Date Written: February 17, 2016
There has been tremendous national attention to the use of psychology-informed laws to improve, and in some instances substitute for, substantive regulation. A number of recent laws, as well as a new White House task force, seek to use psychology to guide, or nudge, citizens toward desired actions. An implicit assumption is that well-established, formal psychological science will generally convey a regulatory advantage to government vis-à-vis business and special interests. But, is government the true psychological expert? Government typically has a monopoly on legal prohibitions, taxes, and criminal punishment, but it does not have exclusive rights to — or superior expertise in — psychological tactics. The psychological competence of regulated entities vis-à-vis government is an important problem, and challenge, for psychology-informed policy-making. This article examines why business and interest groups are often better than government at deploying psychology. I advance three reasons why these special interests may outpsych government: superior competency in the most powerful psychological modalities, such as visual imagery; capacity for rapid iteration of psychological tactics; and laxer role constraints on psychological tactics.
Keywords: behavioral law and economics, consumer law, law and psychology, administrative law
JEL Classification: K10, K20, K23
Suggested Citation: Suggested Citation