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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Rationality is v. Rationality does | |
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< | Neoclassical economics has, over a half century, become a pillar of contemporary legal thought. As a positive system, it provides mathematical precision to legal theory. As a normative system, it shapes vast areas of law dealing with transaction and choice. Some wonder if its legal influence, however, has reached its zenith. A decade into the 21st century, the model has come under attack. As new tools enable researchers to learn more about the human brain and its cognitive limitations, some economists have begun to question certain assumptions about human nature that constitute its core. If a social theory is ultimately valued by the accuracy with which it exposes the impetuses behind human behavior, this essay considers just how these questions might affect the legal principles anchored to the neoclassical model. | >
> | Neoclassical economics has, over a half century, become a pillar of contemporary legal thought. As a positive system, it provides mathematical precision to legal theory. As a normative system, it shapes vast areas of law dealing with transaction and choice. Some wonder if its legal influence, however, has reached its zenith. As new tools enable researchers to learn more about the human brain and its cognitive limitations, some economists have begun to question certain assumptions about human nature that constitute its core. If a social theory is ultimately valued by the accuracy with which it exposes the impetuses behind human behavior, this essay considers just how these questions might affect the legal principles anchored to the neoclassical model. | | | Rational Choice Theory and the Law | |
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< | The debate is loudest at U. of Chicago, with Richard Posner at the helm of the traditional law and economics movement, and Richard Thaler leading a mutiny in the developing field of behavioral economics (“developing,” because, as of yet, the field is without a formal theory). According to Posner, the full range of human psychology can be sufficiently explained within rational choice theory as is. Conversely, Thaler asserts certain peculiarities of human nature, though often predictable, lie outside the scope of the traditional model. Further, the more we learn that human decision-making processes differ from neoclassical presumptions, the less explanatory power of the traditional model retains. With the battle lines set, how might a search for “bounded rationality” affect legal standards whose efficiency aims largely depend on the perfect rationality of the actors to whom they apply? | >
> | The debate is loudest at U. of Chicago, with Richard Posner at the helm of the traditional law and economics movement, and Richard Thaler leading a mutiny in the developing field of behavioral economics (“developing,” because, as of yet, the field is without a formal theory). According to Posner, the full range of human psychology can be sufficiently explained within rational choice theory as is. Conversely, Thaler asserts certain peculiarities of human nature, though often predictable, lie outside the scope of the traditional model. Further, the more we learn that human decision-making processes differ from neoclassical presumptions, the less explanatory power of the traditional model retains. | | | The Hand formula | |
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< | In the 1947 case of United States v. Carroll Towing Co., J. Learned Hand put forth his eponymous formula for negligence liability. Where the burden of avoiding harm is less than the probability of the harm times the loss associated with the harm (B < P x L), the defendant causing harm acts without requisite care. In that Hand introduced the idea of using a cost-benefit analysis to create a bright line rule of culpability within a tort claim, Carroll Towing represents prescient use of rational choice theory to aid in rendering consistent qualitative judgments in the law. Though Hand’s formula was non-binding dicta, its association of the reasonable person standard with rational choice theory was a first and retains analytical significance. It presumes people are capable of making rational decisions before they act. | >
> | In the 1947 case of United States v. Carroll Towing Co., J. Learned Hand put forth his eponymous formula for negligence liability. Where the burden of avoiding harm is less than the probability of the harm times the loss associated with the harm (B < P x L), the defendant causing harm acts without requisite care. In that Hand introduced the idea of using a cost-benefit analysis to create a bright line rule of culpability within a tort claim, Carroll Towing represents prescient use of rational choice theory to aid in rendering consistent qualitative judgments in the law. Though the Hand formula was non-binding dicta, it retains analytical significance. It presumes people are capable of making rational decisions before they act. | | | Fellow Chicagoan Gary S. Becker in his 1976 essay The Economic Approach to Human Behavior said, “[A]ll human behavior can be viewed as involving participants who [1] maximize their utility [2] from a stable set of preferences and [3] accumulate an optimal amount of information and other inputs in a variety of markets.” (p. 14). Though generally accepted, the breadth of this rule has invited challenge ever since. | | |
The shift in students’ subscription choice undermines Becker’s assumption that people make decisions from “a stable set of preferences.” Ariely demonstrates that people’s preferences are not always fixed and absolute, but can be dynamic and relational to the environment in which choice is permitted to occur. According to Ariely, the way to get people to choose option A over option B is to add option A', a clearly less desirable alternative to option A, thereby increasing option A's relative attractiveness. | |
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< | You don't have to twist my ARM to get me to buy | >
> | You don't have to twist my ARM to get be to buy
Unlike fixed-rate mortgages (FRMs), where monthly payments are constant, adjustable-rate mortgages (ARMs) permit monthly payments to vary based on a predetermined market rate that resets each year. Their meaningful difference comes down to which party bears the interest rate risk over the life of the loan: FRM lenders or ARM borrowers. In exchange, ARM borrowers pay a lower premium than FRM borrowers do.
Rational choice theory would expect utility-maximizing home buyers choosing between an FRM and an ARM to engage in a cost-benefit analysis that takes into account, all else equal: 1) their preference for risk, and 2) the current interest rate spread between FRMs and ARMs. But, under Ariely’s findings, how might the availability of a third mortgage option affect homebuyer preferences?
Hybrid ARMs function like a FRM at the outset of the loan, usually for 3, 5, 7 or 10 years, after which they convert to a traditional ARM, where rates float with the market. Introduced after traditional ARMs and having proven more popular with home buyers, what if the traditional ARM is the option A’ that boosts the relative appeal of the hybrid ARM? In this regard, traditional ARMs, which confer all interest rate risk to the borrower, would make hybrid ARMs, which confer some interest rate risk to the borrower, even more attractive to risk-averse borrowers by virtue of their relative comparison. And, if Ariely’s observation has any value in this unproven hypothetical, more borrowers might choose hybrid ARMs than would be the case if the traditional ARMs were no option at all. | | | General Implications for the Normative System |
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