Law Commons^™

Time-Shifted Rationality And The Law Of Law's Leverage: Behavioral Economics Meets Behavioral Biology, Owen D. Jones

Owen Jones

A flood of recent scholarship explores legal implications of seemingly irrational behaviors by invoking cognitive psychology and notions of bounded rationality. In this article, I argue that advances in behavioral biology have largely overtaken existing notions of bounded rationality, revealing them to be misleadingly imprecise - and rooted in outdated assumptions that are not only demonstrably wrong, but also wrong in ways that have material implications for subsequent legal conclusions. This can be remedied. Specifically, I argue that behavioral biology offers three things of immediate use. First, behavioral biology can lay a foundation for both revising bounded rationality and fashioning …

The Evolution Of Irrationality, Owen D. Jones

Owen Jones

The place of the rational actor model in the analysis of individual and social behavior relevant to law remains unresolved. In recent years, scholars have sought frameworks to explain: a) disjunctions between seemingly rational behavior and seemingly irrational behavior; b) the origins of and influences on law-relevant preferences, and c) the nonrandom development of norms. This Article explains two components of an evolutionary framework that, building from accessible insights of behavioral biology, can encompass all three. The components are: "time-shifted rationality" and "the law of law's leverage."

Endowment Effects In Chimpanzees, Owen D. Jones, Sarah F. Brosnan, Susan P. Lambeth, Mary Catherine Mareno, Amanda S. Richardson, Steven Schapiro

Owen Jones

Human behavior is not always consistent with standard rational choice predictions. The much-investigated variety of apparent deviations from rational choice predictions provides a promising arena for the merger of economics and biology. Although little is known about the extent to which other species also exhibit these seemingly irrational patterns of human decision-making and choice behavior, similarities across species would suggest a common evolutionary root to the phenomena.

The present study investigated whether chimpanzees exhibit an endowment effect, a seemingly paradoxical behavior in which humans tend to value a good they have just come to possess more than they would have …

Law And Behavioral Biology, Owen D. Jones, Timothy H. Goldsmith

Owen Jones

Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandings of the multiple causes of human behavior. The better those understandings, the better law can achieve social goals with legal tools. In this Article, Professors Jones and Goldsmith argue that many long held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constituting behavioral biology. By helping to refine law's understandings of behavior's causes, they argue, behavioral biology can help to improve law's …

I Share, Therefore It's Mine, Donald J. Kochan

Donald J. Kochan

Behavioral Public Choice And The Law, Gary M. Lucas Jr., Slaviša Tasić

Gary M. Lucas Jr.

Behavioral public choice is the study of irrationality among political actors. In this context, irrationality means systematic bias, a deviation from rational expectations, or other departure from economists’ conception of rationality. Behavioral public choice scholars extend the insights of behavioral economics to the political realm and show that irrational behavior is an important source of government failure. This Article makes an original contribution to the legal literature by systematically reviewing the findings of behavioral public choice and explaining their implications for the law and legal institutions. We discuss the various biases and heuristics that lead political actors to support and …

Conservatism And Switcher's Curse, Aaron Edlin

Aaron Edlin

Are They Worth Reading? An In-Depth Analysis Of Online Trackers’ Privacy Policies, Candice Hoke, Lorrie Faith Cranor, Pedro Giovanni Leon, Alyssa Au

Lorrie F Cranor

We analyzed the privacy policies of 75 online tracking companies with the goal of assessing whether they contain information relevant for users to make privacy decisions. We compared privacy policies from large companies, companies that are members of self-regulatory organizations, and nonmember companies and found that many of them are silent with regard to important consumer-relevant practices including the collection and use of sensitive information and linkage of tracking data with personally-identifiable information. We evaluated these policies against self-regulatory guidelines and found that many policies are not fully compliant. Furthermore, the overly general requirements established in those guidelines allow companies …

Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton

Timothy D. Lytton

This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …

On The Proper Motives Of Corporate Directors (Or, Why You Don't Want To Invite Homo Economicus To Join Your Board), Lynn A. Stout

Lynn A. Stout

One of the most important questions in corporate governance is how directors of public corporations can be motivated to serve the interests of the firm. Directors frequently hold only small stakes in the companies they manage. Moreover, a variety of legal rules and contractual arrangements insulate them from liability for business failures. Why then should we expect them to do a good job? Conventional corporate scholarship has great difficulty wrestling with this question, in large part because conventional scholarship usually adopts the economist's assumption that directors are rational actors motivated purely by self-interest. This homo economicus model of behavior may …

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

Law, Environment, And The “Nondismal” Social Sciences, William Boyd, Douglas Kysar, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Over the past 30 years, the influence of economics over the study of environmental law and policy has expanded considerably, becoming in the process the predominant framework for analyzing regulations that address pollution, natural resource use, and other environmental issues. This review seeks to complement the expansion of economic reasoning and methodology within the field of environmental law and policy by identifying insights to be gleaned from various “nondismal” social sciences. In particular, three areas of inquiry are highlighted as illustrative of interdisciplinary work that might help to complement law and economics and, in some cases, compensate for it: the …

A Critical Examination Of The Climate Engineering Moral Hazard And Risk Compensation Concern, Jesse Reynolds

Jesse Reynolds

Behavioral Approaches To Environmental Policy Analysis: A Case Study Of Offshore Wind Energy In The North American Great Lakes, Erik Edward Nordman

Erik Edward Nordman

Behavioral economics, including prospect theory, offers new approaches to environmental policy analysis. The utility of behavioral approaches to environmental policy analysis is illustrated using a case study of offshore wind energy policy in Michigan, USA. Michigan has attempted to clarify the permitting process for offshore wind energy but those efforts have failed. Prospect theory suggests that Michigan legislators are, for the most part, risk averse to policy reforms as the state emerges from its “one-state recession” and into a gains domain. Legislators from some coastal districts perceive offshore wind development as a threat to coastal quality of life, are risk-seeking …

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

Are People Probabilistically Challenged? Book Review Of Daniel Kahneman, Thinking, Fast And Slow (2011), Alex Stein

Alex Stein

Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and policymaker interested in behavioral economics. Thus far, behavioral economists did predominantly experimental work that uncovered discrete manifestations of people’s bounded rationality: representativeness, availability, anchoring, overoptimism, base-rate neglect, hindsight bias, loss aversion, and other misevaluations of probability and utility. This work has developed no causal explanations for these misevaluations. Kahneman’s book takes the discipline to a different level by developing an integrated theory of bounded rationality’s causes and characteristics. This theory holds that humans use two distinct modes of reasoning, intuitive (System 1) and deliberative (System …

The Promise Principle And Contract Interpretation, Juliet P. Kostritsky

Juliet P Kostritsky

The promise principle and its roots in a certain type of morality of individual obligation, which play the central role in Charles Fried’s vision of Contract law, have importantly contributed to rescuing Contract law from absorption into Tort law and from the imposition of externally imposed standards that are collective in origin. It makes a mammoth contribution to alerting us to the tyranny of interference with individual self-determination. However, this essay questions whether a promise centered system derived from a moral philosophy of promising (without an observable and testable foundation in reality) and geared to internal individual obligation and duty …

The Flawed Probabilistic Foundation Of Law & Economics, Alex Stein

Alex Stein

This Article challenges the mathematical probability system that underlies law and economics and behavioral analysis and argues that many of the core insights of both approaches are irremediably flawed. The Article demonstrates that mathematical probability is only suitable for pure gambles and hence does not provide a useful epistemic tool for analyzing individual decisionmaking. As a result, mathematical probability cannot serve as a useful tool for lawmakers. Mathematical probability, the Article proposes, ought to be replaced with causative probability—a system of reasoning compatible with the causal structure of people’s physical, social and legal environments. Originating from the writings of John …

Patent Reforms Must Focus On The U.S. Patent Office, Ron D. Katznelson

Ron D. Katznelson

No abstract provided.

For Both Love And Money: Viviana Zelizer's "The Purchase Of Intimacy", Martha M. Ertman

Martha M. Ertman

Viviana Zelizer’s recent book, The Purchase of Intimacy (2005) presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships--a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer’s critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships, then explains her more three-dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer’s approach to transfers of genetic material, and concluding …

For Both Love And Money: Viviana Zelizer's "The Purchase Of Intimacy", Martha M. Ertman

Martha M. Ertman

Viviana Zelizer’s recent book, The Purchase of Intimacy (2005) presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships--a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer’s critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships, then explains her more three-dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer’s approach to transfers of genetic material, and concluding …

Behavioral Economic Issues In American & Islamic Marriage & Divorce Law, Ryan M. Riegg

Ryan M. Riegg

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

Analytical Thomism: Traditions In Dialogue, Mario Šilar

Mario Šilar

No abstract provided.

State Laws And The Independent Judiciary: An Analysis Of The Effects Of The Seventeenth Amendment On The Number Of Supreme Court Cases Holding State Laws Unconstitutional, Donald J. Kochan

Donald J. Kochan

In recent years, the Seventeenth Amendment has been the subject of legal scholarship, congressional hearings and debate, Supreme Court opinions, popular press articles and commentary, state legislative efforts aimed at repeal, and activist repeal movements. To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying …

"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan

Donald J. Kochan

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …