Behavioral Analysis of Criminal Law

2014 ◽  
pp. 567-598
Author(s):  
Alon Harel
Keyword(s):  
Optimal Design ◽  
Prospect Theory ◽  
Criminal Law ◽  
Law And Economics ◽  
Retributive Justice ◽  
Social Goals ◽  
Behavioral Analysis ◽  
Potential Contribution ◽  
Uncertainty Prediction ◽  
Behavioral Studies

After contrasting behavioral criminal law and economics with the retributivist tradition and with traditional criminal law and economics, the chapter illustrates how various behavioral phenomena can be used to predict the effects of criminal law norms and to design criminal law in a way that serves social goals, in particular deterrence. It explores the effects of uncertainty on deterrence; it examines the effects of prospect theory and the differential effects of future uncertainty (prediction) and past uncertainty (postdiction) on the propensity to commit crime. It also investigates the effects of overoptimism on the propensity to commit crime. Last the chapter discusses the literature on happiness and its relevance to the optimal design of criminal law. It establishes that the literature on happiness can be used to promote retributive justice concerns. The chapter concludes by examining critically the potential contribution of behavioral studies to the optimal design of criminal law norms.

scholarly journals Behavioral Criminal Law and Economics

2008 ◽  
Author(s):  
Richard H. McAdams ◽  
Thomas S. Ulen
Keyword(s):  
Criminal Law ◽  
Law And Economics

Behavioral Studies

2018 ◽  
Author(s):  
Eyal Zamir ◽  
Doron Teichman
Keyword(s):  
Decision Making ◽  
Professional Training ◽  
Rational Choice Theory ◽  
Choice Theory ◽  
Law And Economics ◽  
Judgment And Decision Making ◽  
Moral Judgments ◽  
Training Experience ◽  
Behavioral Ethics ◽  
Behavioral Studies

Against the background of rational choice theory, this chapter provides an overview of the behavioral sub-disciplines informing behavioral law and economics—including judgment and decision-making studies, parts of social psychology, moral psychology, experimental game theory, and behavioral ethics. The chapter discusses deviations from cognitive and motivational rationality, including studies of people’s moral judgments. It begins with probability assessments and related issues. It critically describes phenomena related to prospect theory, phenomena associated with motivated reasoning and egocentrism, and those related to reference-dependence. It also summarizes studies of bounded willpower. Some attention is given to studies that show that most people do not share the consequentialist outlook that prioritizes the maximization of human welfare over all other values. Finally, the chapter discusses several issues that cut across various phenomena: individual differences in judgment and decision-making; the significance of professional training, experience, and expertise; deciding for others; group decision-making; cultural differences; and debiasing.

Rights Forfeiture and Punishment

2017 ◽  
Author(s):  
Christopher Wellman
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Core Values ◽  
Retributive Justice ◽  
International Criminal Law ◽  
Moral Permissibility ◽  
Side Constraints ◽  
Hard Treatment ◽  
Procedural Rights ◽  
Core Issues

In Rights Forfeiture and Punishment, Christopher Heath Wellman argues that those of us who seek to defend the moral permissibility of punishment should shift our focus from general justifying aims to moral side constraints. Given that persons typically have a right not to be subjected to the hard treatment of punishment, it would seem natural to conclude that the permissibility of punishment is centrally a question of rights. Despite this, the vast majority of theorists working on punishment focus instead on important aims, such as achieving retributive justice, deterring crime, restoring victims, or expressing society’s core values. The book argues that these aims may well explain why we should want a properly constructed system of punishment, but none shows why it would be permissible to institute one. Only a rights-based analysis will suffice, because the type of justification we seek for punishment must demonstrate that punishment is permissible, and it would be permissible just in case it violated no one’s rights. On this book’s view, punishment is permissible only when the wrongdoer has forfeited her right against punishment by culpably violating (or at least attempting to violate) the rights of others. After defending rights forfeiture theory against the standard objections, the book explains this theory’s implications for a number of core issues in criminal law, including the authority of the state, international criminal law, the proper scope of the criminal law and the tort/crime distinction, procedural rights, and the justification of mala prohibita.

Behavioral Law and Economics of Property Law

2014 ◽  
pp. 376-404 ◽  
Author(s):  
Daphna Lewinsohn-Zamir
Keyword(s):  
Current Literature ◽  
Law And Economics ◽  
Behavioral Analysis ◽  
Future Research ◽  
Property Law ◽  
Liability Rules ◽  
Commercial Property ◽  
Economics Literature ◽  
Behavioral Law And Economics

This chapter critically surveys the behavioral law-and-economics literature on property law. First, it sketches the main features of existing studies and their tendency to excessively focus on certain topics, such as the home. The chapter then discusses various issues with respect to which behavioral analysis has made an impact, such as the characterization of property as a “thing” or as a “bundle of sticks,” compensation for takings of property, the choice between property rules and liability rules, and redistribution through rules of property law. The chapter proceeds to highlight several gaps in the current literature, such as the disregard of commercial property, fungible property, and movables. Finally, the chapter addresses the desirability and possibility of debiasing, and offers recommendations for future research.

scholarly journals Optimal Design of Trade Agreements in the Presence of Renegotiation

2015 ◽  
Vol 7 (1) ◽  
pp. 109-143 ◽  
Author(s):  
Giovanni Maggi ◽  
Robert W. Staiger
Keyword(s):  
Optimal Design ◽  
Trade Liberalization ◽  
Bargaining Power ◽  
Law And Economics ◽  
Trade Agreements ◽  
Optimal Contract ◽  
Liability Rule ◽  
Optimal Property ◽  
High Uncertainty ◽  
Property Rule

We study the optimal design of trade agreements when governments can renegotiate after the resolution of uncertainty but compensation between them is inefficient. In equilibrium, renegotiation always results in trade liberalization, not protection. The optimal contract may be a “property rule” or a “liability rule.” High uncertainty favors liability over property rules, while asymmetries in bargaining power favor property over liability rules. Moreover, optimal property rules are never renegotiated. With a cost of renegotiation, property rules are favored when this cost is higher, reversing a central conclusion of the law-and-economics literature. (JEL C78, D86, F13, F15, K12)

scholarly journals Keadilan Restoratif dan Korban Pelanggaran HAM (Sebuah Telaah Awal)

2012 ◽  
Vol 1 (2) ◽  
pp. 275
Author(s):  
Rena Yulia
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Restorative Justice ◽  
Criminal Law ◽  
Retributive Justice ◽  
Human Right ◽  
Existing Problems ◽  
Do So ◽  
Domestic Violence Law

Various violations on human right happening in Indonesia today have never been completely solved. Victims of human right violations (direct or indirect victims) find it difficult to access justice through the existing criminal law today. Difficulties in proving the violations committed by the actors make it harder for the justice to be in the victim’s side. For any reasons, the violations of human rights should be brought into the court. It is surely not easy to do so as the retributive justice applied so far has not been able to solve the existing problems and to give fairness to the victims. Restorative justice is therefore considered as a potential way out for a justice to take place for the crime actors, victims and society in general. In various types of criminal actions such as domestic violence, law –violatingchildren and traffic crime, the restorative justice has been successfully applied and it is now under evaluation in human right related cases. This is done in order to find out the effectiveness of this restorative justice in solving those cases. This writing aims to find out opportunities for the restorative justice implementation in solving human right violations in Indonesia. Keywords: Human Right violation victims, restorative justice, rehabilitation.

scholarly journals BECCARIA TRA DIRITTO PENALE ED ECONOMIA PUBBLICA

2011 ◽  
pp. 295-402
Author(s):  
Gian Paolo Massetto
Keyword(s):  
Criminal Law ◽  
Public Economics ◽  
Law And Economics ◽  
Field Work ◽  
Theory And Practice ◽  
Long Time ◽  
Solid Part ◽  
Empirical Investigations

Beccaria between criminal law and public economics. As Mario Romani wrote in 1966: ‘the most mature and solid part of Beccaria’s work as system builder, that is, his lectures on economia pubblica delivered between 1769 and 1772, and the empirical investigations or consulte stemming from inquiries undertaken in his capacity as a member of government bodies, was for a long time wholly or partly overlooked, or entrusted to unreliable editors, who were ready to print manuscripts the Author himself had not deemed worthy of publication’. This discomfort is no longer justified. The Elementi di economia pubblica will soon be published, while the Atti di Governo have recently appeared in print. We now know the details of Beccaria’s activity in the Supremo Consiglio d’Economia, as Head of the First and then of the Second Department, and as a member of the Consiglio di Governo. We can evaluate his contribution to both theory and practice in the fields of criminal law and economics. The aim of this essay is to assess the consistency between Beccaria’s theoretical writings and his field work, with particular reference to freedom of trade (of grains in particular), free bakery, hunting, forest and mines, the Pizzighettone prison, and the Milan house of correction.

Can Prospect Theory Predict the Decision Making by Professionals?

2016 ◽  
Vol 5 (1) ◽  
pp. 24-47
Author(s):  
Neslihan Yilmaz ◽  
Can Kalaycioglu
Keyword(s):  
Decision Making ◽  
Pharmaceutical Industry ◽  
Prospect Theory ◽  
Behavioral Finance ◽  
Learning Effect ◽  
Finance Industry ◽  
Behavioral Studies ◽  
General Studies

Behavioral studies show that people are subject to biases in general. Studies in the behavioral finance literature mostly focus on finance professionals and top level managers, and report similar results. This study focuses on professionals outside of the finance industry and who are of lower levels. Moreover, it looks at whether there is a learning effect among these professionals through the design of the authors' survey. They test the predictions of prospect theory among the professionals in the pharmaceutical industry and find that prospect theory predicts the respondents' behavior in general. They also show that there is some learning effect among these professionals. Finally, the authors find that demographics and experience differently influence respondents' answers.

Refounding Law and Economics: Behavioral Support for the Predictions of Standard Economic Analysis

2019 ◽  
Vol 16 (2) ◽  
Author(s):  
Eyal Zamir
Keyword(s):  
Economic Analysis ◽  
Human Behavior ◽  
Law And Economics ◽  
Motivated Reasoning ◽  
Behavioral Ethics ◽  
Behavioral Support ◽  
Unconscious Processes ◽  
Human Motivation ◽  
Behavioral Studies

AbstractBased on the premise that people are rational maximizers of their own utility, economic analysis has a fairly successful record in correctly predicting human behavior. This success is puzzling, given behavioral findings that show that people do not necessarily seek to maximize their own utility. Drawing on studies of motivated reasoning, self-serving biases, and behavioral ethics, this article offers a new behavioral foundation for the predictions of economic analysis. The behavioral studies reveal how automatic and mostly unconscious processes lead well-intentioned people to make self-serving decisions. Thus, the behavioral studies support many of the predictions of standard economic analysis, without committing to a simplistic portrayal of human motivation. The article reviews the psychological findings, explains how they provide a sounder, complementary foundation for economic analysis, and discusses their implications for legal policymaking.

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