Taking Behavioralism Too Seriously? The Unwarranted Pessimism of the New Behavioral Analysis of Law

134 Pages Posted: 11 Apr 2002

See all articles by Gregory Mitchell

Gregory Mitchell

University of Virginia School of Law

Date Written: April 2002

Abstract

Legal scholars increasingly rely on a behavioral analysis of judgment and decision-making to explain legal phenomena and argue for legal reforms. The main argument of this new behavioral analysis of the law is twofold: (1) all human cognition is beset by systematic flaws in the way that judgments and decisions are made, and these flaws lead to predictable irrational behaviors; (2) these widespread and systematic non-rational tendencies bring into serious question the assumption of procedural rationality underlying much legal doctrine and, thus, bring into question the wisdom of this legal doctrine. This paper examines the psychological research relied on by legal behavioralists to form this argument and demonstrates that this research does not support the bleak and simple portrait of pervasive irrationality painted by these scholars. Careful scrutiny of the psychological research reveals greater adherence to norms of rationality than that implied by the legal behavioralists, and the methodological and interpretive limitations on this psychological research make extrapolation from experimental settings to real world legal settings often inappropriate. Accordingly, this paper argues that legal scholars should exercise greater care and precision in their uses of psychological data to avoid advocating further legal reforms based on flawed understandings of psychological research.

Suggested Citation

Mitchell, Gregory, Taking Behavioralism Too Seriously? The Unwarranted Pessimism of the New Behavioral Analysis of Law (April 2002). FSU College of Law, Public Law Research Paper No. 48, Available at SSRN: https://ssrn.com/abstract=306560 or http://dx.doi.org/10.2139/ssrn.306560

Gregory Mitchell (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-4088 (Phone)

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