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

Stern, Stephanie M., Outpsyched: The Battle of Expertise in Psychology-Informed Law (February 17, 2016). Jurimetrics, Vol. 57, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2733724 or http://dx.doi.org/10.2139/ssrn.2733724

Stephanie M. Stern (Contact Author)

Chicago-Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5285 (Phone)

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