Christine Jolls,* Cass R. Sunstein,** and Richard Thaler*** Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior. It considers specific topics in the economic analysis of law and proposes new models and approaches for addressing these topics. The analysis of the article is organized into three categories: positive, prescriptive, and normative. Positive analysis of law concerns how agents behave in response to legal rules and how legal rules are shaped. Prescriptive analysis concerns what rules should be adopted to advance specified ends. Normative analysis attempts to assess more broadly the ends of the legal system: Should the system always respect people’s choices? By drawing attention to cognitive and motivational problems of both citizens and government, behavioral law and economics offers answers distinct from those offered by the standard analysis.
Archivio per 1 ottobre 2016
In the 1990s, law and economics scholars such as Robert Ellickson, Lisa Bernstein, Cass Sunstein, Richard McAdams, and Eric Posner, among others, focused their attention on the analysis of social norms as an altemative to law in regulating social behavior.1 This led Lawrence Lessig to name the 1990s law and norms literature as the “New Chicago School” (“NCS”) and Ellickson as its founder.2 But the origin of the new law and economics literature on social norms dates back to the early 1980s, when I published a series of three papers on social norms embedded in the “ethnically homogeneous middleman group” (“EHMG”). 3 These norms serve as an alternative to contract law for the enforcement of contracts under conditions of contract uncertainty where the legal framework is not well developed.4 In addition, I published a paper on primitive contract law that focused on the Kula Ring, a gift-exchange system operating in the stateless societies in Papua New Guinea, which functioned to facilitate intertribal regional trade. 5