The Yale Journal of Law and the Humanities has demonstrated the evident good sense to publish two works by our colleagues in the same issue. (It also distributes off prints so attractive they are worthy of comment.)
Anne Dailey and Peter Siegelman combined on a review of two widely discussed books, each of which has helped popularize behavioral economics. The first book, Predictably Irrational by Dan Ariely, compellingly summarizes much of the experimental evidence demonstrating familiar ways in which individuals often make irrational choices. For example, students asked to write the final two digits of their social security numbers on a piece of paper evidence different bidding patterns for items following the exercise. (Those with higher numbers tend to bid more.) People answering questionnaires repeatedly judge it more likely that the U.S. will provoke Russia into a nuclear attack than that there will be a nuclear exchange from any cause, even though the latter includes the former. By now, psychologists are aware of numerous cognitive phenomena such as framing, anchoring bias, hindsight bias, and the offer-asking problem, that can be used to predict such cognitive errors.
The second book, Nudge: Improving Decisions about Health, Wealth and Happiness by Cass Sunstein and Richard Thalen similarly details flawed decision making but also focuses more directly on how policy makers can respond to such human frailty. Structuring individual choices through what’s known as “choice architecture” may prove a better tool for economic regulators than stiff regulations or defaulting to laissez-faire. To note the example often tossed around in the press, retirement plans are more likely to persuade workers to participate if the rules automatically enroll them and permit opting out than if the rules require the workers to opt in. Perhaps this explains why every Oriental rug store in town encourages customers to take the rug home to try it free of charge.
Our colleagues’ review, Predictions and Nudges: What Behavioral Economics Has to Offer the Humanities, 21 Yale J. Law and Humanities 341-59 (2009) generally applauds the contributions of these behavioral economists. Certainly, nothing in the review suggests a preference for the simpler economic texts that merely presume rational actors. Anne and Peter do note the review literature that launches the obvious critique of the behavioral turn. If individuals acting in their own self-interest are prone to cognitive errors that will cloud decision making, won’t policy makers attempting to correct these errors also have blinders on? Perhaps those seeking to alter citizen behavior by manipulating framing bias will themselves suffer from an overconfidence bias that will cause them to overestimate their ability to shape large numbers of individual choices. But our colleagues rightly choose to focus their attention elsewhere. This ground has been well covered, and it’s ultimately silly to turn our back on patterned cognitive errors on the grounds that any attempt to correct for them is doomed to failure due to some similar but unspecified cognitive failing.
Anne and Peter instead offer a needed supplement to the books under review. They urge us to celebrate and embrace as a humanizing trend, any increased understanding of the complexity of human decision making. But they insist we never forget that cognitive errors are a narrow subset of the many human tendencies that create departures from rational self interest. People will make mistakes and fail to most effectively pursue their own interest. But people will also act irrationally as a result of all sorts of psychological forces such as anger, jealousy, revenge, and even self-destructive impulses. What Anne and Peter so tellingly bring to our attention is that the contemporary focus on cognitive bias is merely a first step in bringing together economic study with the full spectrum of human motivations that have long been the province of the humanities and of those strands of psychology, such as psychoanalysis, that have tackled a broad panoply of psychic forces. Their tone and style is optimistic and upbeat, mostly congratulating the authors for helping move forward the effort to blend the queen of the social sciences with the classical studies of human nature that have long been prevalent in Western thought. But they make no mistake about their view that many more steps are needed along this road.
The second Connecticut-driven item in this volume is the transcript of a panel discussion held May 1, 2009 at Yale Law School. The topic was the relationship between law and psychoanalysis and the participants were Yale’s Robert Post, Bo Burt, Jed Rubenfeld and Peter Brooks (now at Princeton) and noted feminist sociologist and psychoanalyst, Nancy Chodorow. Our own Anne Dailey served as moderator of the proceedings, now reprinted at “Psychoanalytic Remains? Psychoanalytic Perspectives on Law and the Humanities” 21 Yale Journal of Law and the Humanities 309-39 (2009). She devoted her opening remarks, which deeply influenced the discussion to follow, to a riff on the words “if any” that appeared in the classic casebook Psychoanalysis, Psychiatry and Law penned by Joe Goldstein, Jay Katz and Alan Dershowitz in 1967. These authors wonder if there is any relationship between their two preoccupations: psychoanalysis and law. Anne sets this up as a central and revealing question. I particularly liked her emphasis on how the agency that law takes for granted is something that psychoanalysis helps us to see as a capacity earned through both parental guidance and individual struggle. This theme, of course, runs through much of her work.
It’s hard to know how a dean is to react when a neighboring dean so openly praises a treasured faculty member. Consider Bob Post’s remark “Anne has written with grace and intelligence about … how the law should structure prenuptial agreements” or his reaction “that’s a deep point right there” to Anne’s admittedly nifty statement “analysis is the place where meaning is created in the absence of judgment.” Of course, we have no reason to be surprised at how highly regarded Anne is among the participants who clearly enjoyed the discussion her work has produced. Readers will enjoy it too.
Congratulations Anne and Peter.