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Telling It Like It Isn’t: The Cognitive Neuroscience of Confabulation

"Free to Choose" symposium on behavioral law and economics

Mark D. White

As I noted earlier, on December 6 and 7 the blog Truth on the Market hosted "Free to Choose?", an online symposium on behavioral law and economics, the contents of which appear below the fold, followed by an excerpt from Josh Wright's introductory comment.

December 6th

Josh Wright, Introduction (see below for an excerpt)

David Friedman, Behavioral Economics: Intriguing Research Project, With Reservations

Larry Ribstein, Free to Lose

David Levine, Behavioral Economics: The Good, The Bad, and the Middle Ground

Henry G. Manne, Behavioral Overreach

Geoffrey A. Manne, Interesting Doesn’t Necessarily Mean Policy Relevant

Thom Lambert, Behavioral Economics and the Conflicting Quirks Problem: A “Realist” Critique

Christopher Sprigman & Christopher Buccafusco, Valuing Intellectual Property

Judd E. Stone, Misbehavioral Economics: The Misguided Imposition of Behavioral Economics on Antitrust

Ronald Mann, Nudging From Debt

Richard Epstein, The Dangerous Allure of Behavioral Economics: The Relationship Between Physical and Financial Products

December 7th

Claire Hill, The Promise of Behavioral Law and Economics

Kevin McCabe, Behavioral Economics and the Law

Tom Brown, Camel Spotting: Is Behavioral Economics Really Beyond Redemption?

Christopher Sprigman & Christopher Buffafusco, Behavioral Economics and the Road from Law to Lab

Stephen Bainbridge, Mandatory Disclosure: A Behavioral Analysis

Erin O’Hara, The Free Market Side of Behavioral Law and Economics

Todd Henderson, Project Behavior: What the Battle is Really About

Judd Stone, Behavioral Economics, Administrative Agencies, and Unintended Consequences

Douglas H. Ginsburg & Joshua Wright, A Taxonomy of Behavioral Law and Economics Skepticism

Douglas H. Ginsburg & Joshua Wright, Behavioral Economics: The Never-Ending Quest for a Third Way

From Josh Wright's introduction:

The rise of behavioral economics, and in turn, behavioral law and economics, has been one of the most significant developments in either field in a remarkably short period of time.  In 2010, Nudge is a household name, “libertarian paternalism” is (a hotly debated) a term of art, and behavioral economics has taken made its way from articles, journals and popular books and into the policy and regulatory landscape.  In the United States, Cass Sunstein — one of the godfather’s of the Nudge — heads OIRA, the Consumer Financial Protection Bureau is founded on a behavioral approach to consumer credit envisioned by Elizabeth Warren and Oren Bar-Gill, and behavioral economics appears to have gained traction within the Obama administration.  But behavioral law and economics is not a phenomenon limited to the United States.  Indeed, a “Nudge Unit” has been created in David Cameron’s cabinet.

To give some historical perspective on the speed with which the rise of behavioral economics and behavioral law and economics has occurred, consider that just thirty years ago, Milton Friedman launched the PBS television series “Free to Choose” and published a book by the same title.  Consistent with Friedman’s central ideas, both the television series and book advocated reliance on the individualized, dispersed power of markets rather than the consolidated power government to protect consumer and workers and fuel innovation and economic growth.  Thirty years later, the power of Friedman’s ideas and the ongoing development of markets around the world might have been expected to lead to the spread of this philosophy.  Indeed, the final chapter of Free to Choose was entitled “Turning the Tide,” and discussed Friedman’s view (along with his co-author and wife, Rose) that public opinion was “shifting away from a belief in collectivism and toward a belief in individualism and private markets.”  Central to Friedman’s work was the view that the economic costs of substituting the judgment of government bureaucrats and regulators for those of individuals, even when the individuals could be expected to err, would far outstrip any benefits of such an approach.

The topic of the symposium is necessarily broad.  Behavioral economics itself has made a significant contribution to increasing our understanding of when individual decision-making deviates from the rationality assumption at the heart of the conventional microeconomic theory.   Behavioral law and economics now reaches all corners of the law.  The rise of behavioral economics raises interesting sets of questions both within the domain of economics itself: what are the costs and benefits of the intersection of psychology and economics?  What explains the remarkable success of behavioral economics in the behavioral law and economics literature?  Will the phenomenon have staying power?  Is it in fact the case that behavioral law and economics is gaining traction in the current regulatory landscape?  We do have the Consumer Financial Protection Bureau.  But what else?  On the specifics, what are the sorts of behavioral law and economic policy prescriptions in other areas of the law such as antitrust, consumer protection, and intellectual property?   Would such interventions be successful?   Will there be long-term costs of approaches built on the concept that one can rely on the the government to correct decision-making errors?  And further, has the implementation of regulatory proposals by the behavioral law and economics camp in practice remained faithful to the insights produced by the behavioral economics literature in theory, laboratory experiments and the field?  Or have proposed “nudges” merely take the form of default rules which map onto the policy preferences of the academic advocate?


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