The Methodology of the Behavioral Analysis of Law

Haifa Law Review, Vol. 4, p. 237, 2008

92 Pages Posted: 12 Sep 2008 Last revised: 11 Jan 2009

Avishalom Tor

Notre Dame Law School; University of Haifa - Faculty of Law

Date Written: July 11, 2008

Abstract

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 the behavioral approach is empirically driven, engaging in both the theoretical application of extant empirical findings to the law and the generation of new, legally relevant, experimental and observational evidence. As this Part shows, moreover, each of these behavioral genres possesses different methodological strengths and weaknesses, and they therefore both substitute for and complement one another, in different respects. Part IV explains that the behavioral approach encounters a series of "gaps" between the type of empirical evidence provided by behavioral decision researchers and the data required to resolve legal questions. Legal scholars should therefore be aware of these gaps, which may limit the usefulness of extant behavioral evidence for legal analysis. This Part also addresses what legal scholars may do to overcome these gaps and distinguish real gaps from imaginary ones. Part V completes the body of the Article, arguing that the behavioral analysis of law is simultaneously normatively neutral and normatively relevant. It is normatively neutral because the behavioral analysis of law is not committed to any specific legal goal or value system. This fundamental neutrality, in turn, makes the behavioral approach a versatile instrument, which can help generate important normative conclusions in the service of scholars evaluating the law based on any normative criteria - from justice to welfare and more. Part VI concludes.

Keywords: behavioral, experimental, law and economics, rationality, choice, judgment, decision making, debiasing, paternalism

JEL Classification: A12, C91, K00

Suggested Citation

Tor, Avishalom, The Methodology of the Behavioral Analysis of Law (July 11, 2008). Haifa Law Review, Vol. 4, p. 237, 2008. Available at SSRN: https://ssrn.com/abstract=1266169

Avishalom Tor (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, IN IN 31905
Israel

Paper statistics

Downloads
795
Rank
23,107
Abstract Views
2,980