European and American perspectives on behavioural law and economics

Abstract

Behavioural law and economics is one of the two most significant developments currently going on in legal scholarship. In this essay, I seek to describe, first, why behavioural law and economics is so important and to give abrief example of how it has altered the law-and-economic analysis of onesignificant area ofsubstantive law-criminal law and punishment. Second, I discuss some criticismsof behavioural law and economics, finding that some of those criticisms have merit and raise serious issues that legal scholars should investigate further. I describe two recent articles that find a common behavioural policy prescription of using “nudges” to be not just ineffectual but damaging. Finally, I speculate on some differences between the structure of legal faculties and prevailing scholarly practicesin Europe and North America that may have an impact on how quickly legal scholars in those two areas address the open questions in behavioural lawand economics.