Behavioral Public Choice and the Law
67 Pages Posted: 21 Mar 2015 Last revised: 24 Sep 2016
Date Written: March 20, 2015
Behavioral public choice is the study of irrationality among political actors. In this context, irrationality means systematic bias, a deviation from rational expectations, or other departure from economists’ conception of rationality. Behavioral public choice scholars extend the insights of behavioral economics to the political realm and show that irrational behavior is an important source of government failure. This Article makes an original contribution to the legal literature by systematically reviewing the findings of behavioral public choice and explaining their implications for the law and legal institutions. We discuss the various biases and heuristics that lead political actors to support and adopt bad laws and describe how irrationality influences specific areas of the law, including tax, antitrust, consumer protection, corporate, and employment law. We also discuss various proposals for minimizing the effects of irrationality on public policy. Our goal is to introduce this new field of research to legal scholars, most of whom have previously ignored it. Familiarity with behavioral public choice will help legal scholars better understand the types of policies that are likely to emerge from real-world political processes and will facilitate efforts to promote realistic policy reform.
Keywords: behavioral public choice, behavioral law and economics, behavioral political economy, rational ignorance, biases and heuristics, irrationality, deliberative democracy, administrative law, tax salience
JEL Classification: D70
Suggested Citation: Suggested Citation