Mgr Magdalena Małecka
Polish Academy of Sciences
English abstract: Law & economics scholars have claimed, from the very beginning of the movement, that their ambition has been to make studies of law more scientific. The neoclassical approach in economic analysis of law is based on the assumption that rationality of people acting in legal contexts can be characterized in the same ways as rationality of homines economici. However, emergence of behavioral economics and attempts to apply it to analysis of law by some law & economics scholars resulted in critical revising the achievements of neoclassical approach. The so called behavioral law & economics criticizes the neoclassical approach on the basis of experiments, which test hypotheses derived from neoclassical theories. Outcomes of those experiments allow to draw conclusion that in many (legal) contexts people don’t behave in accordance with predictions based on neoclassical models. Behavioral law & economics scholars argue that neoclassical theories are grounded on so highly unrealistic assumptions that in many situations they cannot offer predictions of human behavior. I distinguish three main issues that are discussed: philosophical, methodological and normative ones. I formulate critical comments on the raised arguments and final general remarks concerning possibility of making legal studies more scientific, as well as application of economics to studies on law.
Keywords: behavioural law & economics, scientific study of law, legal theory, normative and methodological debate
Published: Number 1(2)/2011, pp. 15-28.
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- Arlen J., Comment: The future of behavioral economic analysis of law, “Vanderbilt Law Review” 1998/51.
- Bar-Gill O., The behavioral economics of consumer contracts, “Minnesota Law Review” 2007–2008/92.
- Blaug M., Metodologia ekonomii, Warszawa 1995.
- Faure M., van den Bergh R., Essays in law and economics, Antwerpen 1989.
- Friedman M., Essays in Positive Economics, Chicago 1953
- Friedman M., Essay on the Methodology of Positive Economics w: Friedman M., Essays in Positive Economics, Chicago 1953.
- Gigerenzer G., Adaptive thinking. Rationality in the real world, New York 2000.
- Guthrie Ch., Framing Frivolous Litigation: A Psychological Theory, “The University of Chicago Law Review” 2000/67.
- Issacharoff S., Can there be a behavioral law and economics?, “Vanderbilt Law Review” 1998/51.
- Jolls Ch., Sunstein C., Thaler R., A behavioral approach to law and economics, “Stanford Law Review” 1998/5.
- Jolls Ch., Sunstein C., Thaler R. , Theories and tropes: A reply to Posner and Kelman, “Stanford Law Review” 1997–1998/50.
- Kahneman D., Knetsch J.L., Thaler R., The Endowment Effects, Loss Aversion and Status Quo Bias, “Journal of Economic Perspectives” 1991/5.
- Langevoort D.C., Organized Illusions: A Behavioral Theory of Why Corporations Mislead Stock Market Investors (and Cause Other Social Harms), “University of Pennsylvania Law Review” 1997–1998/146.
- Meier S., Sprenger Ch., Impatience and Credit Behavior: Evidence from a Field Experiment, Fed. Reserve Bank of Boston, Working Paper No. 07–03, 2007.
- Nowak L., Wstęp do idealizacyjnej teorii nauki, Warszawa 1977.
- Posner R., Frontiers of Legal Theory, Cambridge (Mass.)-London 2001.
- Rabin M., Incorporating Fairness into Game Theory and Economics, “American Economic Review” 1993/83.
- Rachlinski J.J., A Positive Psychological Theory of Judging in Hindsight, “The University of Chicago Law Review” 1998/2.
- Simon H., Models of bounded rationality, MIT Press 1982.
- Tversky A., Kahneman D., Prospect theory: an analysis of decision under risk, „Econometrica” 1979/47.
- Ulen T., The growing pains of behavioral law and economics, “Vanderbilt Law Review” 1998/51.