Property Law: A Cognitive Turn
Blumenthal, Jeremy A., Psychonomic Bulletin & Review
Despite more than a century of research by psychologists on issues relating to the law, most such research has focused on a small subset of topics relevant to the legal system. Here, I review several legal topics amenable to psychological research that fall under the broad umbrella of property law: (1) how the concepts of property and ownership are represented cognitively; (2) the relationship between wealth and happiness, consumer behavior, and the priming effect of money concepts; (3) animal and child development in cognition about and behavior toward property and ownership; and (4) the relevance of psychological research on home to legal policy. These and other areas provide potential research agendas for cognitive and social cognitive psychologists. After noting the importance of such research for legal doctrine, theory, and policy, I close with suggestions for effectively communicating empirical findings to the legal community.
For more than a century, psychologists have sought to contribute to and influence the legal system. The majority of that work, however, has focused on a surprisingly small range of topics: eyewitness testimony, jury decision making, child suggestibility, and psychopathology (e.g., Ogloff, 1999; Saks, 1986). Profound contributions have been made in such areas: Elizabeth Loftus's work on memory and eyewitnesses, for instance, was an important stimulus for allowing expert witness testimony at trials (e.g., Loftus, 1979; Powers, Andriks, & Loftus, 1979); Steve Ceci's work (Ceci & Bruck, 1993; Ceci & Friedman, 2000) has been influential in prompting courts to be more open to challenges to children's testimony. Nevertheless, as is demonstrated in the present special issue, there is far more to the legal system than trials and juries and children and witnesses, and cognitive psychologists have a great deal to contribute in the other areas that exist (Spellman & Busey, 2010).
One area of legal doctrine attracting increased attention is property law-the expansive umbrella subject covering real estate, possession, ownership, mortgages, wills, zoning, gifts, finders, mineral rights, leases, nuisance, historical landmarks, intellectual property, eminent domain, and sunken treasure, to name a few aspects. Each of these specific doctrinal areas is amenable to empirical psychological research, if only to compare existing legal rules with laypeople's perceptions of what those rules should be (Blumenthal, 2009a, 2009b). Determining whether such perceptions match legal doctrine can help further a discussion of whether and how discrepancies might be resolved. But such comparison is only a starting point. As with every other aspect of the legal system, much of the substance of these doctrines rests on presumptions about human cognition, perception, attitudes, and emotions, and it is in these contexts that cognitive psychological research into property law might be especially useful.
Some such research exists, applying fundamental insights from cognitive psychology to property-related issues. Northcraft and Neale (1987), for instance, applied basic research on heuristics and biases to show that the anchoring effect applies to experts' and laypeople's appraisals of housing prices, with an anchoring effect of the first suggested selling price. Anchoring also influences subjects' estimates of the value of other commodities, such as automobiles (Mussweiler, Strack, & Pfeiffer, 2000). Judgments of fairness and equity have challenged traditional assumptions about economic decision making, showing that people's preference for fairness can trump rational choices. Specifically, a preference for fairness can lead to people in the Ultimatum Game rejecting offers of money that they deem unfair (see Blumenthal, 2010; Huang, 2000).1 And loss aversion, a fundamental feature of prospect theory and its challenge to the rational choice model, has been put forth as one of the bases for the controversial property law doctrine of adverse possession (Stake, 2001)-the rule that if a trespasser meets certain conditions for a legally specified period of time, he can obtain ownership of the property upon which he trespasses. …