Sunday, April 6, 2014
A while ago, in the beginning of the previous decade, as a doctoral student of law and behavioral economics, I was looking for a topic for my PhD dissertation and I had suggested my advisor to write on whether individual differences could be a factor in legal policy making.
Having studied the huge importance of individual differences and personality theories in psychology, I felt it has been a huge omission of the newly emerged law and behavioral economics. At the time, my advisor thought the idea is too premature and hence risky, and I have decided to study the interaction between law and social norms. A decade later I am pleased to see that the interest in individual differences seems to be on the rise. This interest appears to be developing from various directions.
Firstly, research on big data has led some to suggest the potential for a more fine-tuned approach to default rules. See for example, Porat and Strahilevitz (2013). Secondly the rising nudge approach obviously raises the importance of individual differences to a higher level, given the areas of life it attempts to regulate Sunstein’s (2013).
Thirdly, newly acquired knowledge about individual differences in areas such as risk or intuition are disseminating into legal theories. My wonderful colleague, Avishalom Tor is organizing a terrific conference on individual differences in law that will be held in London in June, and I hope to report more on the topic following the conference.
Naturally, adopting individual differences in law is not a dichotomist decision, as it could be adopted only in areas where the theory is strong and the impact is significant. Furthermore, while I think we should be excited with the development of these lines of reasoning and the dramatic potential to its impact on both private law and public law, a few words of caution are necessary:
First, how much of the individual differences can we identify ex-ante? This is obviously highly important for most private law contexts. Second, is the categorization offered by the different personality theories reliable and stable enough? Third, how substantial are the differences and whether the benefit from being sensitive to them, outweighs the cost of acquiring the information and the uncertainty associated with incorporating it into law. Fourth, how to relate between psychological based individual differences and demographic based differences. The latter might be more identifiable and reliable but more controversial from a normative standpoint.
The last point, emphasizes an obvious fact. The more we will care about individual differences in law, there will be a need not just to improve the social science aspect of it but also the jurisprudential infrastructure, in terms of concepts such as equality, fairness and welfare.
Strahilevitz, L., & Porat, A. (2013). Personalizing Default Rules and Disclosure with Big Data.
Sunstein, C. R. (2012). Impersonal default rules vs. active choices vs. personalized default rules: A triptych.
Sunstein, C. R. (2013). Deciding By Default. University of Pennsylvania Law Review, 162(1).
 This omission, might have been related to the dominance of economics to which I have referred to in my previous blog.
 To some extent, it is already widely used in criminal law, especially, when it comes to theories of punishment.