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

79 Ohio St. L.J. 17 (2018)
Malleable Rationality

handle is hein.journals/ohslj79 and id is 23 raw text is: Malleable Rationality STEPHANIE PLAMONDON BAIR* In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published A Behavioral Approach to Law and Economics, one of the most important pieces of scholarship in decades. Their article famously proposes a departure from the neoclassical law and economics approach to legal analysis. Breaking from neoclassical law and economics' rational actor construct, the authors apply empirical insights about human behavior to introduce the concept of a boundedly rational actor limited by cognitive constraints. Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to legal analyses. Unfortunately, the current approach to behavioral law and economics is incomplete. Indeed, sometimes it even conflicts with empirical lessons about how the brain actually works. In particular, rationality is not independent ofpolicy but instead has a malleable character that can be molded in long-lasting ways over time by specific laws and policies. By overlooking the malleable nature of rationality, behavioral law and economics cannot reach its full potential, and in fact, may harm the very people it is intended to benefit. A policy enacted to preserve consumer autonomy, for instance, may actually undermine autonomous decision- making in the long term. In this Article, I take the first step in remedying this oversight. Drawing on the insights of neuroscience, I explain why rationality is not independent of policy and what this means for behavioral law and economics. Working from examples in advertising and criminal law, I explain that malleable rationality can and should be accounted for. Doing so will increase the prescriptive and normative power of behavioral law and economics, and prevent policies from being introduced that undermine rather than advance social welfare. * Stephanie Plamondon Bair, Associate Professor, BYU Law School. Thank you to Clark Asay, Dan Burk, Elysa Dishman, Martha Farah, Cathy Hwang, Matthew Jennejohn, Owen Jones, Dmitry Karshtedt, Jonathan Masur, Mark McKenna, David Moore, Emily Murphy, Aaron Nielson, Andres Sawicki, Jeremy Sheff, Lisa Grow Sun, Avishalom Tor, Stephen Yelderman, participants in the 2016 Rocky Mountain Junior Scholars Conference, participants in the J. Reuben Clark Law Society Conference, participants in the University of Utah Law and Biomedicine Colloquium, participants in the Works in Progress Intellectual Property 2017 Conference at Boston University, participants in the 2017 BioLawlapalooza at Stanford Law School, participants in the 2017 Junior Faculty Forum for Law and STEM at Penn Law School, and participants in the Notre Dame Faculty Colloquium for helpful insights and comments on earlier drafts.

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