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Full-Text Articles in Law

Understanding Behavioral Antitrust, Avishalom Tor Nov 2013

Understanding Behavioral Antitrust, Avishalom Tor

Avishalom Tor

Behavioral antitrust – the application to antitrust analysis of empirical evidence of robust behavioral deviations from strict rationality – is increasingly popular and hotly debated by legal scholars and the enforcement agencies alike. This Article shows, however, that both proponents and opponents of behavioral antitrust frequently and fundamentally misconstrue its methodology, treating concrete empirical phenomena as if they were broad hypothetical assumptions. Because of this fundamental methodological error, scholars often make three classes of mistakes in behavioral antitrust analyses: First, they fail to appreciate the variability and heterogeneity of behavioral phenomena; second, they disregard the concrete ways in which markets, …


Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor Nov 2013

Illustrating A Behaviorally Informed Approach To Antitrust Law: The Case Of Predatory Pricing, Avishalom Tor

Avishalom Tor

One of the core assumptions of the traditional economic approach to antitrust law is that competitors are perfectly rational, profit-maximizing, decision makers. Sometimes, this assumption serves as a useful simplification of business behavior, providing an effective foundation for antitrust doctrine. At other times, however, assuming strictly rational behavior on the part of competitors is not “approximately right” but, instead, “perfectly wrong.” In these latter cases, the reliance on the perfect rationality assumption can lead scholars to mispredict market behavior and, possibly, advocate erroneous prescriptions for antitrust policy. In contrast, a behaviorally informed approach to antitrust law is based on scientific …


The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor Nov 2013

The Methodology Of The Behavioral Analysis Of Law, Avishalom Tor

Avishalom Tor

This article examines the behavioral analysis of law, meaning the application of empirical behavioral evidence to legal analysis, which has become increasingly popular in legal scholarship in recent years. Following the introduction in Part I, this Article highlights four central propositions on the subject. The first, developed in Part II, asserts that the efficacy of the law often depends on its accounting for relevant patterns of human behavior, most notably those studied by behavioral decision scientists. This Part therefore reviews important behavioral findings, illustrating their application and relevance to a broad range of legal questions. Part III then argues that …