When evidence on the truth or falsity of a proposition is ambiguous and open to multiple interpretations, psychologists warn about "biased assimilation" of the evidence to support pre-existing theories, beliefs, and attitudes. Therefore, when a skeptic about the public policy implications of psychological research examines the complex mix of evidence on human rationality, he may find much to support his skepticism about the use of psychology to reform the law. Likewise, an optimist about the public policy contributions of psychology may find within this same body of evidence much to bolster his optimistic view that psychological research can be used to refashion the law to better predict and regulate human behavior.
Two of my previous articles on the subject of behavioral law and economics, or, as I prefer to call the field, legal decision theory, and Robert Prentice's excellent discussion of my articles and of legal decision theory in general may illustrate the biased assimilation phenomenon at work. Indeed, Professor Prentice and I often cite the very same works to support our different perspectives on legal decision theory-with Prentice's article emphasizing how much we know about the quasi-rationality of human judgment and decision making and my articles emphasizing how little we know in light of the complexity of the evidence. Notwithstanding the possible influence of The good news is that a strategy of consciously considering opposing viewpoints and opposite possibilities has been shown somewhat effective in countering biased-assimilation processes.
Tendencies Versus Boundaries: Levels of Generality in Behavioral Law and Economics,
56 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol56/iss6/3