{"title":"Contract Law","authors":"T. Hough, Ewan Kirk","doi":"10.1093/oso/9780190901349.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780190901349.003.0008","url":null,"abstract":"This chapter presents an overview of the behavioral analysis of contract law. It first presents a behavioral theory of contracts that highlights the role of values such as promise-keeping and trust, and examines how the role played by those values depends on whether the contract is a product of negotiation or not (i.e., a standard-form contract). The chapter then discusses specific issues in contract law from a behavioral viewpoint—including pre-contractual negotiations (with special emphasis on the role of default rules and other reference points), contract formation, contract interpretation and supplementation, performance, and remedies for breach of contract, including agreed-upon remedies.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129128329","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Consumer Contracts","authors":"E. Zamir, D. Teichman","doi":"10.1093/oso/9780190901349.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780190901349.003.0009","url":null,"abstract":"This chapter presents an overview of the behavioral analysis of the law of consumer contracts. The chapter reviews various marketing techniques that build upon consumers’ bounded rationality, including the manner of presenting information, limited availability, low-ball and bait-and-switch techniques, and lenient return policies. It also analyzes several pricing techniques, such as price framing, multidimensional prices, deferred and contingent payments, and odd pricing. The chapter then turns to examining the content of consumer contracts, and highlights how pricing methods, non-salient clauses, and modifications might also exploit consumers’ limited rationality. In light of this overview, the chapter examines market-based (primarily competition and reputation) and legal solutions (primarily disclosure and mandatory regulations) to the challenges posed by consumer contracts.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128238050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tort Law","authors":"E. Zamir, D. Teichman","doi":"10.1093/oso/9780190901349.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780190901349.003.0010","url":null,"abstract":"This chapter presents an overview of the behavioral analysis of tort law. It begins by presenting a summary of traditional economic analysis of tort law. That done, it examines various tort regimes (i.e., negligence and strict liability), as well as alternative legal regimes that base liability on the creation of risk rather than the materialization of harm, in light of the bounded rationality of potential tortfeasors and adjudicators. The chapter further explores the implications of behavioral findings for the calculation of damages in tort cases. Finally, it addresses the topic of product liability law, and highlights the ramifications of consumers’ bounded rationality for this area of law.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"223 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122471996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Economic Analysis of Law: An Overview","authors":"E. Zamir, D. Teichman","doi":"10.1093/OSO/9780190901349.003.0002","DOIUrl":"https://doi.org/10.1093/OSO/9780190901349.003.0002","url":null,"abstract":"While behavioral insights are vital to any theory of law, they are particularly important as qualifiers of standard economic analysis of law. Standard economic analysis assumes that people are rational maximizers of their own utility. As a normative theory, it ultimately takes into account only human welfare and focuses on maximization of aggregate social utility. This chapter offers a bird’s-eye view of economic analysis of law. It describes the main features of economic analysis in general, with a focus on positive economics, followed by a description of the tenets of the normative branch of economic analysis known as welfare economics.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131256270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Behavioral Studies","authors":"E. Zamir, D. Teichman","doi":"10.1093/oso/9780190901349.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780190901349.003.0003","url":null,"abstract":"Against the background of rational choice theory, this chapter provides an overview of the behavioral sub-disciplines informing behavioral law and economics—including judgment and decision-making studies, parts of social psychology, moral psychology, experimental game theory, and behavioral ethics. The chapter discusses deviations from cognitive and motivational rationality, including studies of people’s moral judgments. It begins with probability assessments and related issues. It critically describes phenomena related to prospect theory, phenomena associated with motivated reasoning and egocentrism, and those related to reference-dependence. It also summarizes studies of bounded willpower. Some attention is given to studies that show that most people do not share the consequentialist outlook that prioritizes the maximization of human welfare over all other values. Finally, the chapter discusses several issues that cut across various phenomena: individual differences in judgment and decision-making; the significance of professional training, experience, and expertise; deciding for others; group decision-making; cultural differences; and debiasing.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125679244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"An Overview of Behavioral Law and Economics","authors":"E. Zamir, D. Teichman","doi":"10.1093/OSO/9780190901349.003.0004","DOIUrl":"https://doi.org/10.1093/OSO/9780190901349.003.0004","url":null,"abstract":"The chapter introduces behavioral law and economics. It is divided into three sections. The first section describes the history of behavioral law and economics since the late 1970s. The second section discusses the methodologies used in this sphere, including the emergence of empirical legal studies. Empirical legal studies include lab-experimental, observational, and field-experimental studies—the last category comprising randomized field experiments and natural experiments. Finally, the chapter analyzes the challenges facing this emerging, cross-disciplinary perspective. These challenges include critiques of the psychological studies that form the basis of behavioural law and economics, such as the issues of external validity of laboratory experiments. They also include difficulties in integrating behavioural insights into economic analysis of law.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134299762","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Behavioral Insights and Basic Features of the Law","authors":"E. Zamir, D. Teichman","doi":"10.1093/oso/9780190901349.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780190901349.003.0006","url":null,"abstract":"This chapter argues that reference-dependence and loss aversion are crucial not only to understanding human behavior, but also to understanding how the law shapes people’s behavior. Moreover, it argues that reference-dependence and loss aversion can explain—and possibly justify—key features of the law itself. It shows how these psychological notions permeate the law and illuminate fundamental characteristics of the legal system. It then considers an evolutionary explanation for the congruency between loss aversion and the law, as well as an explanation based on the correspondence between loss aversion, prevailing moral judgments, and the law. Finally, it is argued that reference-dependence and loss aversion not only explain basic features of the law, but can justify them, as well.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123383341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Normative Implications","authors":"E. Zamir, D. Teichman","doi":"10.1093/oso/9780190901349.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780190901349.003.0005","url":null,"abstract":"This chapter discusses the normative implications of the psychological findings documenting deviations from rationality, with particular focus on fundamental issues that cut across different legal fields. It first outlines the contribution of happiness studies and heuristics-and-biases research to theories of human welfare and the formulation of normative theories. The chapter then focuses on the normative significance of prevailing moral judgments (as studied by moral psychologists) for legal policymaking. Moving on to more pragmatic issues of lawmaking, the chapter examines two major implications of behavioral studies for setting the goals of legal norms: preventing the exploitation of people’s cognitive biases by others, and protecting people from their own fallibility. Finally, turning from goals to means, the discussion highlights the contribution of behavioral studies to the design of disclosure duties and behaviorally informed regulation (nudges).","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"229 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134534682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Criminal Law and Enforcement","authors":"E. Zamir, D. Teichman","doi":"10.1093/OSO/9780190901349.003.0013","DOIUrl":"https://doi.org/10.1093/OSO/9780190901349.003.0013","url":null,"abstract":"This chapter surveys the contributions of behavioral studies to the analysis of criminal law and law enforcement. It begins by introducing the key insights of economic analysis of crime control. It then examines the extent to which people’s moral judgments are compatible with the dictates of economic analysis in this sphere—and the associated normative implications. It proceeds to analyze the ramifications of behavioral findings regarding how people perceive probabilities and sanctions for deterrence theory. The chapter e also examines the contribution of research in the area of behavioral ethics to crime control. Finally, it discusses the implications of behavioral research for recidivism.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130794363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Commercial Law: Corporate Law, Securities Regulation, and Antitrust","authors":"E. Zamir, D. Teichman","doi":"10.1093/OSO/9780190901349.003.0011","DOIUrl":"https://doi.org/10.1093/OSO/9780190901349.003.0011","url":null,"abstract":"This chapter critically surveys the behavioral analysis of commercial law. It begins by examining the preliminary question of whether bounded rationality can persist in well-functioning, highly competitive markets. As the theoretical analysis and empirical evidence demonstrate, irrational behavior is present even in such settings. The chapter goes on to discuss the implications of behavioral analysis for key issues within corporate law, securities regulation, and antitrust law. These include the ramifications of managers’ overconfidence and passive boards; the bounded rationality of retail investors; and the effect of behavioral phenomena on market competition. The chapter concludes with discussion of the critiques leveled against the behavioral analysis of commercial law.","PeriodicalId":447034,"journal":{"name":"Behavioral Law and Economics","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122269956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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