About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

65 Chi.-Kent L. Rev. 23 (1989)
Bringing Culture and Human Frailty to Rational Actors: A Critique of Classical Law and Economics

handle is hein.journals/chknt65 and id is 35 raw text is: BRINGING CULTURE AND HUMAN FRAILTY TO RATIONAL ACTORS: A CRITIQUE OF CLASSICAL LAW AND ECONOMICS ROBERT C. ELLICKSON* This essay advances two theses: that the law and economics move- ment has been losing its upward trajectory within law schools, and that its practitioners should increasingly look to psychology and sociology in order to enrich the explanatory power and normative punch of economic analysis. The argument that law and economics lacks richness is hardly new. One of the wisest variations on the theme was Arthur Leff's sidesplitting 1974 review of Richard Posner's Economic Analysis of Law.' Leff as- serted the aridity of the rational-actor model of human behavior that economists employ. The economists' model, in its purest form, is based on elegantly simple propositions about both cognitive capacities and motivations. The model assumes that a person can perfectly process available information about alternative courses of action, and can rank possible outcomes in order of expected utility. The model also assumes that an actor will choose the course of action that will maximize his per- sonal expected utility, which may, of course, reflect a concern for the welfare of others.2 Leff asserted, as others had long before him, that the assumption of rationality exaggerates actual human cognitive capacities, and that, be- cause a person's received utility is unobservable, the assumption of ra- tional utility-maximization is strictly nonfalsifiable. A richer model for positive analysis, argued Leff, would look to psychology to develop a more realistic view of cognitive processes, and also look to sociology to obtain a more accurate picture of social influences on human behavior.3 * Walter E. Meyer Professor of Property and Urban Law, Yale Law School. I thank Bruce Ackerman, Ronald Gilson, Henry Hansmann. Robert Lane, Richard Posner, Roberta Romano. Su- san Rose-Ackerman, Alan Schwartz. and Stanton Wheeler for helpful comments. Special thanks are due Betsy Levin, Executive Director of the Association of American Law Schools. who graciously arranged for the tabulation of data on A.A.L.S. section activity. 1. Leff. Economic Analysis of Law: Some Realism About Nominalism. 60 V;., L. REV. 451 (1974). 2. See G. BiECKER. Tmi- ECONOMIC APPROACH TO HUMAN BEHAVIOR (1976): Kitch. The Intellectual Foundations of 'Law and Economics. - 33 J. LEGAL EDUC. 184 (1983). A concise de- scription of the model and its limitations can be found in Hirshleifer. The Expanding Domain of Economics. 75 At. ECON. RIV.. Dec. 1985. at 53. 3. Sec Lcff. supra note 1. at 470-74.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most