Behavioural Analysis: A User Manual for Lawyers

Abstract

Behavioural law and economics is a growing industry. In its neighbourhood, old contacts between lawyers and psychologists are revitalised, and redirected to understanding and designing the law as a governance tool. This is promising work. But lawyers fascinated by behavioural analysis are frequently unaware of the potential pitfalls and caveats. Experimental data do not necessarily respond to legally relevant questions. Often data is missing where it would be most urgent from a legal perspective. Unfortunately, many behavioural phenomena are undertheorised, so that the missing data may not easily be replaced by hypotheses based on general principles. Moreover, the doctrinal interfaces to behavioural analysis must be properly designed, as should be done with the normative theory justifying legal responses to behavioural findings.