Law and Identifiability

Abstract

Psychological studies have shown that people react either more generously or more punitively toward identified individuals, than toward unidentified ones. This phenomenon, named the identifiability effect, has received little attention in the legal literature, despite its importance for the law. As a prime example, while legislators typically craft rules that would apply to unidentified people, judges ordinarily deal with identified individuals. The identifiability effect suggests that the outcomes of these two forms of lawmaking may differ, even when they pertain to similar facts and situations.

This Article is a preliminary investigation into the relevance of the identifiability effect for law in general, and for lawmaking in particular. Based on theoretical discussion and the findings of two original experiments, the Article argues that this cognitive effect should be taken into account by policymakers and decision-makers. While measures should be adopted to reduce the impact of the effect in certain circumstances, in others it may be harnessed to achieve favorable social goals. The analysis has normative implications for major legal debates, such as the choice between rules and standards, and between different redistributive methods.

Keywords: lawmaking, identifiability effect, experimental legal studies, behavioral law and economics, rules and standards, remedies, fines, redistribution

JEL Classification: K10, K11, K12, K40