EducatingHomo Economicus: Cautionary Notes on the New Behavioral Law and Economics Movement

Abstract

Legal scholars have recently been extolling the explanatory potential of behavioral law and economics. This new scholarship seeks to marry insights from traditional microeconomics with findings from the behavioral sciences to produce a descriptively accurate and predictively powerful account of human motivation and decisionmaking to put in the service of legal policy. I examine the claims being made on behalf of this new approach. I argue that legal scholars cannot simply use behavioral science in the place of standard microeconomics. More specifically, I argue that once empirical findings are incorporated into legal policy analysis, it becomes necessary to forsake aspirations of broad generalizability and predictive determinacy. I conclude that legal policies and initiatives need to be informed by a modest conception of social science. Such a conception acknowledges the limitation of social science knowledge and recognizes that strong causal explanations of human behavior cannot be permitted to supplant normative debate.

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