Cornell Law Professor Valerie Hans on the Psychology of Tort Law

Economics has infiltrated the law — from antitrust to torts.

But is looking at the law from an economics lens the best way to see what’s happening?

Not necessarily.


Valerie Hans is a Professor at Cornell Law School.

She is writing a book, with Jennifer Robbennolt titled The Psychology of Tort Law (NYU Press, January 2016).

In it, they will look at tort law through the lens of psychological science, examine the psychological assumptions that underlie tort rules, explore how tort law influences the behavior and decision-making of potential plaintiffs and defendants.

They will examine how doctors and patients, drivers, manufacturers and purchasers of products, property owners, and others make decisions against the backdrop of tort law.

They will show how judges and jurors who decide tort claims are influenced by psychological phenomena in deciding cases. And they reveal how plaintiffs, defendants, and their attorneys resolve tort disputes in the shadow of tort law.

How does looking at tort law from a psychology lens differ from looking at it through an economic lens?

“We look at human beings as they actually are, not as hypothetical economic humans,” Hans told Corporate Crime Reporter in an interview last week. “We are human. We have foibles. We take short cuts in our decision making. We rely on heuristics. We pay more attention to the here and now as opposed to what might happen in the future. We commingle things that should be separate. We are decent decision makers but we are fallible decision makers. Psychology brings to tort law the ways in which actual real world decision making affects the operation of tort law.”

“An economic perspective on tort liability emphasizes that rational decision makers should weigh the benefits and costs of their actions.”

“So, requiring defendants to compensate those they injure provides an economic incentive to take care, and thus should deter harmful behavior.”

“Taking a psychological perspective, though, we emphasize that decision makers are influenced by their own morality, risk-taking tendencies, attitudes, and social norms. Decision makers use mental shortcuts or heuristics that can compromise the ability to engage in cost-benefit analysis.”

“So even if decision makers want to engage in cost-benefit analysis, they may find it difficult to do so.”

What are some practical examples of how psychology influences tort law?

“We find that people over attribute intentionality,” Hans says. “All of us do this. It means that you could look at random patterns of activity and you would look for ways to attribute intentionality to the objects that are moving around randomly.”

“In the book, we have a chapter devoted to intentional torts. And one of the points we make is that this tendency to see intentional behavior is important not only for intentional torts, but also for the more common torts involving negligence claims. People often will see intentional behavior when something was an accident.”

“Another might be the evidence from a whole range of studies on causality, blame, responsibility and damages. These are separate parts of a tort case.”

“One example from an experiment asked a person to attribute causality to a speeding driver who causes an accident. In one case, the person is speeding home to hide drugs. In another case, he is speeding home to hide an anniversary present. Where is causality attributed to a greater degree? Of course, in the case where he is morally culpable — the case where he’s speeding home to hide drugs. The causality question is blended and merged with the responsibility, blame, moral culpability question.”

“You see more broadly motivated reasoning. You think — this is a bad person, and he caused harm too. You know the results that you want to reach. You want to punish this bad person. And here you have an opportunity.”

When people are injured they generally want justice. There seems to be a clash of philosophies. Your book is going to address these deeply held notions of justice, causation, intentionality.

“Understanding why people file claims — or more to the point — why they don’t file claims — shapes the cases that are heard by the tort system,” Hans said. “Very few people, proportionately speaking, who are injured by someone else actually wind up in a tort lawsuit and take a tort lawsuit to court. It’s a fraction of the entire number of injuries that occur. Most people simply take it as their own responsibility.”

What is the psychology behind that?

“Some of it is probably an unwillingness to be involved in the process. But most of it is an ethic of individual and personal responsibility that we all share as a community. When somebody is injured, they look to themselves and think — to what extent was this my fault? Could I have avoided this? Were there some other avenues I could have taken that would have limited the harm?”

“Jurors are perceiving the same factors as they are evaluating the case. Could the plaintiff have done something else?”

“It’s that strong ethic of personal responsibility that we all share.”

How much has the public debate over tort reform affected jurors and potential plaintiffs?

“The tort reform debate has made effective use of particular examples. The one that people think of — not just in the United States, but around the world — is the McDonald’s hot coffee case. People remember that as the case of a woman who collected millions for spilling coffee on herself. We know that isn’t quite how it turned out. But that is what people remember.”

“In the book, we document the way vivid examples can be very powerful in shaping people’s ideas and their attitudes. Tort reformers successfully used those kinds of examples to achieve their goals.”

[For the complete q/a transcript of the Interview with Valerie Hans 29 Corporate Crime Reporter 27(13), July 6, 2015, print edition only.]

Copyright © Corporate Crime Reporter
In Print 48 Weeks A Year

Built on Notes Blog Core
Powered by WordPress