Behavioralism

Abstract: 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.

Abstract: Like Rachel, Jacob's beloved but still childless bride, who asked herself and the Lord each morning, “Am I?,” or “Can I?,” so presidents of this Association on these annual occasions intermittently ask, “Are we a science?,” or “Can we become one?” My predecessor, David Truman, raised this question last September applying some of the notions of Thomas Kuhn in his recent book on scientific revolutions. I shall be following in Truman's footsteps, repeating much that he said but viewing the development of the profession from a somewhat different perspective and intellectual history. My comments will be organized around three assertions.First, there was a coherent theoretical formulation in the American political theory of the eighteenth and nineteenth centuries.Second, the development of professional political science in the United States from the turn of the century until well into the 1950's was carried on largely in terms of this paradigm, to use Kuhn's term. The most significant and characteristic theoretical speculation and research during these decades produced anomalous findings which cumulatively shook its validity.Third, in the last decade or two the elements of a new, more surely scientific paradigm seem to be manifesting themselves rapidly. The core concept of this new approach is that of the political system.

Abstract: Could an artificial intelligence become a legal person? As of today, this question is only theoretical. No existing computer program currently possesses the sort of capacities that would justify serious judicial inquiry into the question of legal personhood. The question is nonetheless of some interest. Cognitive science begins with the assumption that the nature of human intelligence is computational, and therefore, that the human mind can, in principle, be modelled as a program that runs on a computer. Artificial intelligence (AI) research attempts to develop such models. But even as cognitive science has displaced behavioralism as the dominant paradigm for investigating the human mind, fundamental questions about the very possibility of artificial intelligence continue to be debated. This Essay explores those questions through a series of thought experiments that transform the theoretical question whether artificial intelligence is possible into legal questions such as, "Could an artificial intelligence serve as a trustee?" What is the relevance of these legal thought experiments for the debate over the possibility of artificial intelligence? A preliminary answer to this question has two parts. First, putting the AI debate in a concrete legal context acts as a pragmatic Occam's razor. By reexamining positions taken in cognitive science or the philosophy of artificial intelligence as legal arguments, we are forced to see them anew in a relentlessly pragmatic context. Philosophical claims that no program running on a digital computer could really be intelligent are put into a context that requires us to take a hard look at just what practical importance the missing reality could have for the way we speak and conduct our affairs. In other words, the legal context provides a way to ask for the "cash value" of the arguments. The hypothesis developed in this Essay is that only some of the claims made in the debate over the possibility of AI do make a pragmatic difference, and it is pragmatic differences that ought to be decisive. Second, and more controversially, we can view the legal system as a repository of knowledge-a formal accumulation of practical judgments. The law embodies core insights about the way the world works and how we evaluate it. Moreover, in common-law systems judges strive to decide particular cases in a way that best fits the legal landscape-the prior cases, the statutory law, and the constitution. Hence, transforming the abstract debate over the possibility of AI into an imagined hard case forces us to check our intuitions and arguments against the assumptions that underlie social decisions made in many other contexts. By using a thought experiment that explicitly focuses on wide coherence, we increase the chance that the positions we eventually adopt will be in reflective equilibrium with our views about related matters. In addition, the law embodies practical knowledge in a form that is subject to public examination and discussion. Legal materials are published and subject to widespread public scrutiny and discussion. Some of the insights gleaned in the law may clarify our approach to the artificial intelligence debate.

Abstract: Over the last ten to fifteen years, economists and legal scholars have become increasingly interested in and sensitive to behavioralist insights. In a companion article, Jon Hanson and Douglas Kysar argued that those scholars have nevertheless given short shrift to what is, at least for policymaking purposes, perhaps the most important lesson of the behavioralist research: individuals' perceptions and preferences are highly manipulable. According to Hanson and Kysar, one theoretical implication of that insight for products liability law is that manufacturers and marketers will manipulate the risk perceptions of consumers. Indeed, to survive in a competitive market, manufacturers and marketers must do so. In this Article, Hanson and Kysar present empirical evidence of market manipulation--a previously unrecognized source of market failure. The Article begins by surveying the extensive qualitative and quantitative marketing research and consumer behavioral studies that discern and influence consumer perceptions. It then provides evidence of market manipulation by reviewing common practices in everyday market settings, such as gas stations and supermarkets, and by examining familiar marketing approaches, such as environmentally oriented and fear-based advertising. Although consumers may be well-aware of those practices and approaches, they appear to be generally unaware of the extent to which those tactics are manipulative. The Article then focuses on the industry that has most depended upon market manipulation: the cigarette industry. Through decades of sophisticated marketing and public relations efforts, cigarette manufacturers have heightened consumer demand and lowered consumer risk perceptions. Because consumers are aware that smoking may pose significant health risks, the tobacco industry's success in manipulating risk perceptions constitutes especially strong evidence of the power of market manipulation. The Article concludes by arguing that the evidence of market manipulation may justify moving to a regime of enterprise liability. Indeed, according to Hanson and Kysar, the evidence of market manipulation confirms the intuitions of the first generation of product liability scholars, who worried about manufacturers' power to manipulate and called for just such a regime.