Experimental Psychology on Liability - Dictionary of Arguments
Parisi I 109
Liability/tort damages/tort law/Experimental Psychology/Wilkinson-Ryan: Assigning punishment and compensation often requires the observer or the judge to draw inferences about the subjective experience of the wrongdoer (e.g., her level of intentionality) and/or the subjective experience of the victim (e.g., the nature of her suffering). Each of these judgments is vulnerable to manipulation or error.
From a psychological point of view, it comes as no surprise that damages awards are particularly susceptible to manipulation by a variety of normatively irrelevant factors.
In order to figure out how bad something is, people inevitably, if implicitly, ask themselves, “Compared to what?” (Kahneman and Miller, 1986)(1). Research from moral psychology and law demonstrates widespread agreement around how harms compare to each other. That is, given a list of crimes or acts or harms, we can expect correspondence among a wide array of individuals asked to place them ordinally on a scale of punishment (e.g., Robinson and Darley, 1995)(2).
Problem: The difficulty in the context of tort damages, and even perhaps in lawmaking more generally, is that we are generally not given a long list of wrongful acts and asked to think about how to punish lots of different harms. Rather, juries are presented with a particular harm and asked how to punish that wrongdoer. >Comparisons/Behavioral economics.
1. Kahneman, Daniel and Dale T. Miller (1986). “Norm Theory: Comparing Reality to its Alternatives.” Psychological Review 93: 136–153.
2. Robinson, Paul H. and John M. Darley (1995). Justice, Liability, and Blame: Community Views and the Criminal Law. Boulder, CO: Westview Press.
Wilkinson-Ryan, Tess. „Experimental Psychology and the Law“. In: Parisi, Francesco (ed) (2017). The Oxford Handbook of Law and Economics. Vol 1: Methodology and Concepts. NY: Oxford University Press._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Francesco Parisi (Ed)
The Oxford Handbook of Law and Economics: Volume 1: Methodology and Concepts New York 2017