Oren Bar-Gill, Behavioral Economics and Behavioral Ethics: Beyond the Common Acronym: A Comment on Feldman’s “The Law of Good People”, 22 Jerusalem Rev. Legal Stud. 49 (2020).
Abstract: Behavioral Law and Economics was born approximately 20 years ago, when Behavioral Economics started to be systematically utilized in the service of legal policymaking.1 Before then, people’s responses to legal rules were studied using the rationality assumption of Neoclassical Economics. Behavioral Economics, which replaces the rationality assumption with a more realistic, empirically based understanding of human decision-making, has been around for much longer.2 But it always takes law a few decades to catch up. Behavioral Ethics (BE), focusing “on people’s inability to recognize the extent to which self-interest in its broader sense affects their behavior,”3 has also been around for a while. And, as with Behavioral Economics, it has taken too long for Behavioral Ethics to make inroads into legal policymaking. In his important book, The Law of Good People, Professor Feldman lays the foundation for finally bringing Behavioral Ethics into law with full force. This is a major contribution. This short Comment consists of two Parts. The first, larger part seeks to situate The Law of Good People and BE more generally, vis-à-vis the more established Behavioral Law and Economics (BLE). The main claim is that BE is a close cousin to BLE and that drawing on these familiar similarities is often more useful than highlighting differences (as The Law of Good People tends to do). The second part of the comment focuses on a particular, substantive question, concerning the relationship between deterrence and unawareness or non-deliberative reactions. It challenges the BE claim that unawareness undermines the goal of deterring bad behavior. Before I begin, I wish to emphasize an important caveat: The book draws on a rich literature in psychology and BE, which I am not steeped in. I have not attempted to master this literature, although I am aware that this failure will hurt the quality, even credibility, of this Comment. My goal is a modest one—to take The Law of Good People as a stand-alone statement (without the nuances and qualifications that a rich literature can offer, but a single book cannot), and offer the unlearned reaction of an outsider.