The Growing Pains of Behavioral Law and Economics

We are at the beginning of behavioral law and economics. We now see only dimly the outlines of the elaborate theory of decision making that is to come. We are like the independent scholars who examined the various parts of a very large animal and then tried to put together their reports to describe that animal; we each have bits and pieces of the elephant but no clear image of the entire beast. But we should not despair. We must remember that this behavioralist discipline is, as scholarly developments go, young. Indeed, the conventional law and economics model, to which behavioral law and economics is, in large part, a reaction, is itself relatively new. Law and economics has only recently established itself as a vigorous area of scholarship, as evidenced by regular courses within law schools, multiple textbooks, scholarly conferences, professional organizations, an AALS section, and so on. For instance, the American Law and Economics Association held its first annual meeting in May, 1991. Therefore, we should not be surprised if behavioral law and economics exhibits a degree of awkwardness, lack of focus, some fumbling, and other characteristics of youthfulness. In mitigation, I hasten to add that there are very strong reasons to believe that this particular youth will grow to a vigorous adulthood. Nor should anyone be discouraged by the perfectly sensible criticisms that others make of behavioral theories. They are right to be critical and skeptical, and we should be, too. We must undertake the difficult task of persuading them of the value of the behavioral model