Abstract

Historically, the role psychology has played in the legal system has been confined to discrete domains that lawyers and judges tend to recognize as psychological. For example, in trademark disputes, litigants seeking to establish “consumer confusion” often hire experts to collect survey data showing that consumers are apt to mistake one brand for another. This is a textbook example of “law and psychology”: bringing methodological rigor to traditional legal analyses. Recently, however, a growing number of “experimental jurisprudence” scholars have been studying the law from the outside—theorizing what its doctrines are doing, criticizing its doctrines for what they are not doing—rather than from the inside, helping to sharpen traditional legal analyses (1-2). These empiricists, moreover, have trained their sights on legal constructs that might not strike one as particularly psychological, such as causation, consent, reasonableness, ownership, punishment, contract, and even law itself (e.g., what makes the law the law as opposed to some other kind of social arrangement) (3-10). This new approach departs from traditional law and psychology in both its scope and ambition: Beyond providing narrow expertise on matters that lawyers readily recognize as psychological (e.g., confusion, memory, insanity), experimental jurisprudence aims to advance legal theory broadly.