Comment: Evolutionary Theories of Common Law Efficiency: Reasons for (Cognitive) Skepticism

Debiasing regulators

“…Its pilgrimage toward behavioral efficiency may be attributable to the nature of the common law––an explanation not wholly at odds with Posner’s common law efficiency hypothesis. 55 While this argument is indeed being advanced, it is not to deny that the common law is an institution socially constructed by boundedly rational individuals and has had its own share of cognitive problems (Hirsch, 2005: 436); or that behaviorally efficient rules may be found in other sources of administrative law as well, such as statutes (Rachlinski, 2004: 580–581); rather, it is asserted that administrative common law may best be understood as conducive to debiasing as if judges had intended it, whether they did or not. Administrative law doctrines are behaviorally sensible notwithstanding the fact that they were not explicitly theorized qua behavioral economics.…”

“…It already consists of trial and error. Its progressive development of exceptions to rules not only in administrative law, but in all areas of law, strongly indicates that trial and error does yield legal improvements (Hirsch, 2005: 436). The self-correcting power of iterated adjudication enables courts continually to narrow the gap between error and optimality, substituting smaller mistakes for larger ones as it homes in (Schauer, 2009: 112).…”

Congressional Mobilization of Private Litigants: Evidence from the Civil Rights Act of 1991

“…Further, bounded rationality and information scarcity may place serious constraints on potential litigants' and their attorneys' capacity to actually assess the value of claims, and acquire information about changes in the value of claims (Hirsch 2005). This consideration is driven home when one considers that potential plaintiffs frequently acquire information about the expected value of claims from the media, which focuses on rare outlier cases, creating expectations that are grossly distorted and have little to do with reality (MacCoun 2006).…”