Causation

This chapter explores the psychology of causal reasoning and the implications of this psychology for tort law. The chapter surveys what is known about counterfactual thinking, a process that is at the heart of the but-for test of causation. In addition, the chapter explores the multiple challenges that decision makers face in making causal inferences in complex real-world settings. These include evaluating the contributions of multiple causal factors, evaluating causation in the context of a background risk of harm, identifying the particular source of a harm, and assessing causes that are part of broader causal chains. The chapter raises questions about the role of legal advocacy in defining competing causal accounts and the counterfactual potency of those accounts.

Introduction

This chapter reviews the objectives of tort law, including deterrence, allocation of the costs of injuries, corrective justice, and civil recourse. It describes how these aims implicate the psychology of decision making in tort. In seeking to accomplish its objectives, the law of torts is inevitably concerned with how legal rules influence behavior, how the psychology of decision makers interacts with the legal rules, and how jurors and judges evaluate and respond to the behavior of both plaintiffs and defendants.

Damages

This chapter presents a summary of psychological issues underlying claims for and awards of money damages. It takes a psychological perspective on plaintiffs who are seeking damages, assessing the symbolic significance of money damages and the ability of money damages to redress the imbalance between the liable defendant and the injured plaintiff. It also analyzes the psychology of fact finding, drawing on psychological research to show how judges and juries determine appropriate compensatory and punitive damage amounts.

A Psychological Perspective on Tort Rules, Tort Cases, and Tort Reform

This chapter reviews the ways in which a psychological perspective informs an understanding of how plaintiffs, defendants, lawyers, judges, and jurors make decisions. It then explores how a psychological analysis of the tort system can contribute to the ongoing debate about tort reform, with psychology offering insight into why notions of frivolous lawsuits and litigiousness have become a common part of the public’s torts nomenclature and how tort reform implicates widely cherished values such as the value of personal responsibility. Finally, the chapter raises a number of questions and topics that deserve further systematic study, including causal reasoning within the adversary system; the impact of psychological heuristics; the interaction of liability, compensatory damages, and punitive damages judgments; settlement processes in mass tort;, and the objectives of tort law.

Products Liability

This chapter takes a closer look at a particular subset of cases in tort law – those involving products liability. The way the law handles manufacturing defects—through strict liability—implicates intuitions about the circumstances under which defendants should be held responsible in the absence of negligence. How decision makers assess design defects involves the attribution of responsibility and negligence, and raises additional psychological issues related to betrayal aversion and cost-benefit analysis. Nuanced assessment of the adequacy of warnings must take into account the human factors related to noticing, reading or otherwise decoding, understanding, and following product warnings. Looking at tort law through the lens of products liability also affords an opportunity to explore the psychology of mass torts and the effects of plaintiffs joining together in groups to make their claims. Because products liability cases almost always involve corporate defendants, this chapter explores the psychology of holding a collective entity responsible for having caused harm.

Defenses

This chapter offers a psychologically-based assessment of common defenses to tort law claims. Defenses that blame plaintiffs for their own injuries resonate strongly with the ethic of individual responsibility. Defenses of consent, assumption of risk, and contributory negligence overlap with psychological predispositions and can be powerful arguments in the courtroom. Similarly, defendants’ assertions of self-defense when protecting persons or property echo strongly held views.

Limits on Liability

This chapter describes how tort law deploys the concepts of duty and scope of liability (proximate cause) to limit civil liability. Some of these limits overlap with psychological principles; others are at odds with them. The lack of a general duty to rescue others from harm converges with omission bias, the psychological tendency to see acts as more blameworthy than failures to act. The foreseeability of specific types of harms that could result from an action is a key element in assessing the scope of liability, also in line with psychology. In contrast, people highly value emotional tranquility and close personal relationships, yet tort law places strict constraints on recovery for emotional harm.

Negligence

This chapter explores the “reasonable person” who sits at the heart of tort law and negligence. Psychology has important implications for understanding this central figure. Psychological research informs our understanding of how individuals behave in situations that generate tort liability and how the reasonableness of an actor’s behavior is assessed after the fact. The chapter explores the difficulties that decision makers have with risk assessment and risk-utility balancing, including complications caused by automaticity and limits on attention. It describes how hindsight bias and the complexities of metacognition complicate judging reasonableness after the fact. It explores the ways in which psychology can influence how tort doctrines such as custom and res ipsa loquitur are applied. And it considers how fact finders assess the reasonableness of individuals and corporate actors.

Intentional Torts

This chapter describes the psychology of intentionality and the implications of this research for tort law. Psychologists have examined the intentionality bias, a psychological tendency to attribute intent to actors. The chapter reveals the interplay between judgments of intentionality and harm, and how perceptions of intentionality are linked to judgments of responsibility. This psychology helps to explain why the intentional torts remain a robust and essential part of the framework of the tort system. In addition, the determination of whether an action is intentional is a key part of fact finders’ assessment of tort liability.

The Real World of Torts

This chapter describes the “real world” of torts by describing patterns in the ways in which tort cases are litigated—or not. Key patterns include the high rates at which injured persons choose to lump it rather than bringing a claim; the ways in which injuries are transformed into tort claims through a process of naming, blaming, and claiming; significant attrition from the formal process (the dispute pyramid); increasingly infrequent trials, a trend known as the vanishing trial. The chapter describes the motives of litigants for bringing and defending tort cases, the ways in which attorneys and litigants make decisions about settlement, and the role of insurance throughout the process.