University of Virginia Legal Working Paper Series
University of Virginia Public Law and Legal Theory Working Paper Series
Law and Proximity
Article comments
Forthcoming: University of Illinois Law Review
Abstract
The proximity of stimuli mediates reactions to those stimuli. When people come close to getting something they want, or when they nearly avoid something that harms them, or nearly are harmed by something, they tend to react more strongly than when they miss getting the thing they want by a lot or when a harm that befalls them was unavoidable or when a potential harm never came close to occurring. In this article, we explore these psychological phenomena and their implications for legal policy and process. We begin by reviewing the existing literature on the psychology of proximity and proceed to consider the implications that psychology for the law of torts and crimes (i.e., harms) and for the law of lotteries and gambling (i.e., goods). We then turn to examples of the phenomena produced by law itself – that is, near misses of legality. Here we address how lawmakers could mitigate the frustrations of near misses by structuring law, and the manner in which legal judgments are issued, differently. In particular, we will focus on the implications of the psychology of proximity for the rules-standards debate and assess the virtues of substantial compliance doctrines in that context, a form of legal structure that has received insufficient attention in the course of that debate. Our ultimate conclusion is that lawmakers should take the psychology of proximity into consideration when they make policy choices, but in so doing lawmakers need to bear in mind the potential functionality of that psychology. Near miss experiences can be painful but simultaneously educational, stirring behavioral adjustments in those who endure them.
Subject Area
Public Law and Legal Theory
Recommended Citation
Adam Hirsch and Gregory Mitchell,
"Law and Proximity"
(June 2007).
University of Virginia Legal Working Paper Series.
University of Virginia Public Law and Legal Theory Working Paper Series.
Working Paper 67.
http://law.bepress.com/uvalwps/uva_publiclaw/art67
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