Cognitive Errors, Individual Differences, and Paternalism

Abstract

Legal scholars commonly argue that the widespread presence of cognitive errors in judgment justifies legal intervention to save people from predictable mistakes. Such arguments often fail to account for individual variation in the commission of such errors even though individual variation is probably common. If predictable groups of people avoid making the errors that others commit, then law should account for such differences because those who avoid errors will not benefit from paternalistic interventions and indeed may be harmed by them. The research on individual variation suggests three parameters that might distinguish people who can avoid error: cognitive ability, experience and training, and demographic variables. None of the three predicts good cognitive performance in a reliable fashion, but all three might predict good performance in certain limited circumstances. Thus, legal scholars interested in the application of psychology to law would do well to consider the possibility that an identifiable group will avoid cognitive errors. Indeed, the legal system treats one of these (experience) as important, and marketers actively engage in efforts to determine the relative vulnerability of different groups to cognitive error.