Law and Identifiability

53 Pages Posted: 27 May 2016 Last revised: 1 Aug 2016

See all articles by Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

Hebrew University - Faculty of Law

Ilana Ritov

Hebrew University of Jerusalem - School of Education

Tehila Kogut

Ben-Gurion University of the Negev

Date Written: May 27, 2016

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

Suggested Citation

Lewinsohn-Zamir, Daphna and Ritov, Ilana and Kogut, Tehila, Law and Identifiability (May 27, 2016). 92 Indiana Law Journal, 2017, Forthcoming; Hebrew University of Jerusalem Legal Research Paper No. 16-28. Available at SSRN: https://ssrn.com/abstract=2785510

Daphna Lewinsohn-Zamir (Contact Author)

Hebrew University - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
972-2-5823845 (Phone)
972-2-5829002 (Fax)

Ilana Ritov

Hebrew University of Jerusalem - School of Education ( email )

Mt. Scopus
Jerusalem, 91905
Israel
+972 2 652 9929 (Phone)

HOME PAGE: http://pluto.huji.ac.il/~msiritov/ilana_ritov.htm

Tehila Kogut

Ben-Gurion University of the Negev ( email )

1 Ben-Gurion Blvd
Beer-Sheba 84105, 84105
Israel

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