Posted by The Situationist Staff on March 18, 2010
Situationist Contributor Jon Hanson and Yale Law Professor Doug Kysar are co-delivering the 2010 Monsanto Lecture on Tort Law and Jurisprudence tomorrow at Valparaiso University School of Law. Their lecture is titled “Abnormally Dangerous: Inequality Dissonance and the Making of Tort Law.” Here’s the abstract.
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At the conceptual heart of tort law rests a choice between negligence and strict liability as the default standard of care for unintentional wrongs. The prevailing American view holds that strict liability should be reserved for rare cases in which an activity poses significant hazards even after a defendant has taken all reasonable care. The types of explanations for that preference have shifted over time from a classical liberal rationale to an economic efficiency rationale. Neither of those explanations is fully persuasive on its own terms, as a careful examination of leading cases makes clear. So what might explain why courts sometimes prefer a negligence standard, when their logic could as easily have led them to a strict liability alternative?
There is growing evidence from the mind sciences that the reasons people give for their behavior and decisions are rarely causal and are often confabulatory. The field of social cognition, for instance, has demonstrated through countless experiments that “implicit attitudes” and “implicit motives,” which lie outside the purview of introspection, play a far more significant role in shaping our attitudes, ideologies, and behavior than most of us realize—or care to acknowledge. Among the most studied and influential implicit motives are the “cognitive closure” motive and the “inequality rationalization” motive.
Focusing primarily on Judge Posner’s famous and influential opinion in Indiana Harbor Belt R.R. Co. v. American Cyanamid Co., we examine whether an understanding of those implicit processes might help explain why he held that the activity of transporting highly toxic and flammable chemicals through residential neighborhoods was not abnormally dangerous and thus not subject to strict liability (and why, more generally, negligence has so thoroughly dominated strict liability as the default standard of care). We investigate further whether such implicit dynamics left unexamined might themselves be abnormally dangerous.
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For a sample of related Situationist posts, see “Taking Behavioralism Seriously (Part I) – Abstract and Top Ten List,” “Tort Law’s Distributional Injustice,” “The Cultural Situation of Tort Law,” “Situationist Torts – Abstract,” “Robin Hood Motives,” “The Interior Situational Reaction to Inequality,” “The Motivated Situation of Inequality and Discrimination,” and “The Situation of Inequality – Guns, Germs, and Steel.”
Posted in Abstracts, Distribution, Events, Implicit Associations, Law, Legal Theory, Public Policy, Situationist Contributors | Tagged: Doug Kysar, Jon Hanson, Monsanto Lecture, tort law | 1 Comment »
Posted by The Situationist Staff on January 6, 2009
Doug Kysar and Situationist contributor Jon Hanson recently posted on SSRN their important 1999 article, Taking Behavioralism Seriously: The Problem of Market Manipulation (74 N.Y.U.L. Rev. 363) on SSRN. Here is the article’s abstract.
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For the past few decades, cognitive psychologists and behavioral researchers have been steadily uncovering evidence that human decisionmaking processes are prone to nonrational, yet systematic, tendencies. These researchers claim not merely that we sometimes fail to abide by rules of logic, but that we fail to do so in predictable ways.
With a few notable exceptions, implications of this research for legal institutions were slow in reaching the academic literature. Within the last few years, however, we have seen an outpouring of scholarship addressing the impact of behavioral research over a wide range of legal topics. Indeed, one might predict that the current behavioral movement eventually will have an influence on legal scholarship matched only by its predecessor, the law and economics movement. Ultimately, any legal concept that relies in some sense on a notion of reasonableness or that is premised on the existence of a reasonable or rational decisionmaker will need to be reassessed in light of the mounting evidence that humans are “a reasoning rather than a reasonable animal.”
This Article contributes to that reassessment by focusing on the problem of manipulability. Our central contention is that the presence of unyielding cognitive biases makes individual decisionmakers susceptible to manipulation by those able to influence the context in which decisions are made. More particularly, we believe that market outcomes frequently will be heavily influenced, if not determined, by the ability of one actor to control the format of information, the presentation of choices, and, in general, the setting within which market transactions occur. Once one accepts that individuals systematically behave in nonrational ways, it follows from an economic perspective that others will exploit those tendencies for gain.
That possibility of manipulation has a variety of implications for legal policy analysis that have heretofore gone unrecognized. This article highlights some of those implications and makes several predictions that are tested in other work.
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SSRN has just announced its Journal of Behavioral & Experimental Economics and Journal of Behavioral Economics Top Ten lists for papers posted in the last 60 days. Taking Behavioralism Seriously made both lists.
To download the paper for free click here. That link will direct you to the abstract and various download options. To download the companion article, Taking Behavioralism Seriously: Som Evidence of Market Manipulation (112 Harvard L. Rev. 1420) click here. For a sample of related Situationist posts, see “Promoting Smoking through Situation” and “The Situation of Subprime Mortgage Contracts – Abstract.”
Posted in Abstracts, Behavioral Economics, Choice Myth, Legal Theory | Tagged: abstract, behavioralism, biases, Doug Kysar, economic behavioralism, economics, heuristic, Jon Hanson, law and behavioralism, law and economics, manipulation, market manipulation, products liability, top ten | Leave a Comment »