Introduction

Summary

How does law actually affect people? What do people do in response to the law? Why is the law as it is? How can law be enlisted to improve people's lives? This book attempts to provide some answers. It is also the first general effort to bring behavioral economics to bear on the analysis of law.

In the last two decades, social scientists have learned a great deal about how people actually make decisions. Much of this work requires qualifications of rational choice models, which have dominated the social sciences, including the economic analysis of law. Those models are often wrong in the simple sense that they yield inaccurate predictions. People are not always “rational” in the sense that economists suppose. But it does not follow that people's behavior is unpredictable, systematically irrational, random, rulefree, or elusive to social scientists. On the contrary, the qualifications can be described, used, and sometimes even modeled.

The purpose of this book is to bring new and more accurate understandings of behavior and choice to bear on law. The purpose of this introduction is to say something about the field and about the book's structure and content.

Constructed Preferences

Human preferences and values are constructed rather than elicited by social situations. People do not walk around with menus in their heads: “[O]bserved preferences are not simply read off some master list; they are actually constructed during the elicitation process.…Different elicitation procedures highlight different aspects of options and suggest alternative heuristics, which give rise to inconsistent responses.”