The Psychology of Tort Law

This chapter explores the interaction of tort law and psychology. The law of torts governs the circumstances under which one person or entity is to be held civilly liable for having caused harm to another. Tort law is thought to create incentives for appropriate behavior, to deter unacceptable behavior, and to accomplish corrective justice by remedying past wrongs. In seeking to accomplish these objectives, the law of torts is primarily concerned with determining whether an actor has acted intentionally or negligently in harming another, whether the act at issue caused the injury, whether there should be any other limitations on liability, how to appropriately compensate for that harm (compensatory damages), and whether and how much punishment or additional deterrence (punitive damages) is warranted. Psychological theory and research bear on each of these facets of tort law.

This chapter reviews interconnections between psychology and three specific domains of tort law—causation, comparative negligence, and tort damages. For each domain, it analyzes the contributions of psychological theory and research. The chapter identifies areas in which human psychology comports with the expectations of tort law, areas in which tort rules diverge from psychological intuitions, and psychological phenomena that complicate the application of tort law. The chapter concludes by identifying connections between psychology and tort law that would benefit from more empirical research.