Chicago Man, K-T Man, and the Future of Behavioral Law and Economics

Most law is aimed at shaping human behavior, encouraging that which is good for society and discouraging that which is bad.\u27 Nonetheless, for most of the history of our legal system, laws were passed, cases were decided, and academics pontificated about the law based on nothing more than common sense assumptions about how people make decisions. A quarter century or more ago, the law and economics movement replaced these common sense assumptions with a well-considered and expressly stated assumption-that man is a rational maximizer of his expected utilities. Based on this premise, law and economics has dominated interdisciplinary thought in the legal academy for the past thirty years. In the past decade it has become clear, however, that people simply do not make decisions as modeled by traditional law and economics. A mountain of experiments performed in psychology and related disciplines, much of it in the heuristics and biases tradition founded by psychologists Daniel Kahneman and Amos Tversky, demonstrate that people tend to deviate systematically from rational norms when they make decisions

Of Tort Reform and Millionaire Muggers: Should an Obscure Equitable Doctrine Be Revived to Dent the Litigation Crisis?

Few stories have more power to outrage than that of Bernard McCummings, the millionaire mugger who was awarded $4.3 million by a jury after he was shot by a police officer allegedly using excessive force. This Article focuses on an equitable doctrine which could bar recovery in cases like that of McCummings and, potentially, in a much broader range of cases. The equitable doctrine, ex turpi causa non oritur actio, means essentially that a person who has committed an illegal or immoral act may not bring a lawsuit. This Article examines how the doctrine is applied in selected western common law jurisdictions (Australia, England, Canada, New Zealand, and the United States), and makes the determination that it should not be used in an attempt to blunt the litigation crisis in the United States or in other western common-law nations. The author concludes that this doctrine leads courts to focus improperly upon the punctilios of the plaintiff rather than the public policy factors that should underlie a reasoned assignment of legal responsibility

Behavioral Ethics: Can It Help Lawyers (And Others) Be Their Best Selves?

Using the principles of behavioral psychology and related fields, marketers have changed human behavior in order to increase sales. Governments have used these same principles to change human behavior in order to advance policy goals, such as increasing savings behavior or organ donations. This article surveys a significant portion of the new learning in behavioral ethics in support of the claim that by teaching behavioral ethics we have a realistic chance to improve the ethicality of human decisionmaking and actions