Razionalità limitata e regole contrattuali: promesse e problemi della nuova analisi economica del diritto

Abstract

Today Behavioral Law and Economics is the most ambitious attempt to overcome one of the main limits of Law and Economics, that is the recourse to a model of rationality which is little supported by empirical evidence. However, such an attempt relies exclusively on the idea of "cognitive bias" developed by cognitive psychologists Daniel Kahneman and Amos Tversky. From a normative point of view, the implications of that approach are debatable. The paper proposes to look at psychological schools which show stronger links with the original notion of bounded rationality introduced by Herbert Simon. Among these schools, evolutionary psychology rejects the comparison between observed behavior and the axioms of perfect rationality and tries to find out the factors that ease, obstruct or interact with the decision-making process. The differences between the perspective of Behavioral Law and Economics and other psychological approaches are explored in the field of contract law. Moreover, additional considerations are developed on the comparison between the bounded rationality of public and private organizations and its consequences for the allocation of decision-making authority.