For quite a long time, extensive empirical work in psychology, sociology, and behavioral economics has been revealing that many of the law’s most cherished rules are faulty. They are based upon mistaken assumptions about human behavior. They are often flat out wrong. And yet they persist.
The work of Daniel Kahneman and Amos Tversky has shown that the human mind operates with all sorts of biases and heuristics that lead to systematic errors in judgment and perception. As Dan Ariely put it in a recent work, Predictably Irrational (2008): “[W]e are not only irrational, but predictably irrational . . . our irrationality happens the same way, again and again.” (p. xx). Richard Thaler and Cass Sunstein describe many of these systematic blunders in human judgment in their book, Nudge (2008).
As these studies increasingly make their way into legal scholarship, they are proving that many existing legal rules don’t work as they should. And this is more than a mere normative critique. The rules just fail because people don’t act or think the way the law thinks they ought to. In fact, what we’re learning about the way people act and think is often counterintuitive. It is hard to grasp and hard to deal with.
This research should be undermining many legal rules at their very foundations. Yet the legal rules don’t seem to be shaken despite their foundations being annihilated.
In many domains, when something is proven flat wrong, it is confronted and dealt with. If evidence shows that bleeding the patient isn’t a good cure for disease, then we move on and stop doing it. But in law, if the evidence shows that a rule doesn’t work, what’s the response? Often, it is to just accept the evidence with a grin and continue on. If science were like law, we’d be talking about how the earth is round yet continuing to behave as if it were flat.