By: Tina Cormier

Bringing Human Intuition to the Field of Law

Jessica Bregant is a lawyer. She is also a PhD candidate studying behavioral science and psychology at the University of Chicago. The story of how and why she decided to return to school has unfolded over several years and through experiences that solidified her path toward the intersection of law and social science.

After earning her law degree from the University of Illinois College of Law in 2009, she spent two years clerking for Justice Rita B. Garman of the Illinois Supreme Court and another two years as a Research Fellow at the Illinois Program on Law, Behavior, and Social Science, where she helped law and psychology researchers design and run experiments. During that time, she realized that her future is in teaching law and making law more effective through research on human intuition. This revelation meant she also had to go back to graduate school to get her PhD.

When I was in law school, I loved studying law, but I was constantly frustrated by the assumptions we make about the way people think and behave,” says Bregant. “In psychology, we have the tools and technology to test these assumptions, so I couldn’t understand why the field of law seemed so intent on deciding that other people think and behave in certain ways without looking at empirical evidence.

Today, Bregant is part of a joint program in psychology and business at the University of Chicago where she works with Alex Shaw from the Department of Psychology and Eugene Caruso from the Booth School of Business.

“Most of my work looks at how people think about the law,” explains Bregant. “I’m interested in how legal theory and policy assumptions reflect, or fail to reflect, how people actually think.”

One of her current research topics addresses retributive and deterrent aspects of punishment. Studies in the psychological literature show that humans use punishment for a variety of reasons - retribution, deterrence, and incapacitation, for example. Some studies further suggest that deterrence is used as a rationalization for human retributive instincts.

But her latest research does not support those findings. Bregant designed a study to provide insight into the most basic human intuition about punishment – and she worked with children to do it. Her theory is that, if the concept of deterrence is something complex that adults develop in their heads as a way to rationalize retributive instincts, then one would expect young children to view punishment only from a retaliatory standpoint and to have no concept of punishment as a deterrent. Her study reveals that children do in fact expect punishment to deter wrongdoers, represents a shift from the current literature on the psychology of punishment and has implications for legal theory and reasoning.

“Knowing that deterrence has a strong intuitive appeal that is similar in kind to retribution means that we can think about punishment policy differently than we would if we were all retributionists,” says Bregant. “It also helps us understand why deterrence-based policies are so appealing, even in the face of evidence of some cases where it simply doesn’t work.”

Bregant’s other projects on ownership and contracts have a similar thread of approaching legal theory from the standpoint of intuitive psychology. She intends for her work to be an aid to law – to help create a foundation where legal questions are approached more realistically and empirically.

“Behavioral science can help legitimize and shape the law by providing insights into human intuition. But if we keep doing this research across the street from the law school, we are missing an opportunity to bring these fields together in a meaningful way.”