Florida State University Law Review
Publication Title (Abbreviation)
Fla. St. U. L. Rev.
The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups than for abstract ones. The more information that is available about a person, the more likely this person’s situation will influence human decisionmaking. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries—people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal species, and future generations not subjected to harmful changes in climate—are unidentifiable abstractions.
More fundamentally, however, this identifiability bias has helped create structural biases in legal institutions against environmental and ecological protection. For example, the doctrine of standing creates a bias against unidentifiable victims of environmental wrongs, because of the obvious necessity of showing injury in fact to an identifiable party. Other legal concepts common to a liberal legal tradition also serve to protect the interests of individuals—identifiable individuals—against state action. This liberal conception of law underweights the rights of unidentifiable individuals that are often beneficiaries of state action.
Importantly, this is not simply a variant of public choice theory. Many lawmaking decisions and institutions harbor biases against unidentifiable individuals that are not explainable in monetary terms. And importantly, this is not simply a variant of the availability heuristic. Identifiability is more subtle and lasting than sensationalist media accounts of spectacular events that serve as available heuristics. The identifiability bias in environmental law is based on a fundamental human instinct, not a monetary one, and affects deeper decisionmaking processes.
© 2008 Shi-Ling Hsu
The Identifiability of Bias in Environmental Law, 35
Fla. St. U. L. Rev.
Available at: https://ir.law.fsu.edu/articles/502