Eyal Zamir

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Binyamin Blum

The Hebrew University of Jerusalem

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Arizona State University

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University of Maine School of Law

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University of Virginia

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University of Tennessee Knoxville

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Books by Eyal Zamir

Eyal Zamir and Barak Medina, LAW, ECONOMICS, AND MORALITY (Oxford University Press, 2010)

by barak medina and Eyal Zamir

Can the normative flaws of standard economic analysis be rectified without relinquishing its meth... more Can the normative flaws of standard economic analysis be rectified without relinquishing its methodological advantages? Can deontological moral constraints and options be formalized so as to make their analysis more rigorous? This book examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints (and options) into economic CBA. It argues that such incorporation would improve economic analysis of law, and economic analysis in general, not only as a normative theory but also as a descriptive and predictive tool, without considerably compromising its methodological rigor. At the same time, it maintains that deontologists and jurists who oppose consequentialism have been too hasty in disqualifying economic analysis as a fruitful analytical methodology.
This book develops a detailed framework for incorporating threshold constraints (and options) into CBA. It addresses the challenges facing the formulation of threshold functions, and illustrates the construction and use of threshold functions to analyze several prominent legal issues. Deontologically constrained CBA is more complex than standard CBA. Yet, we maintain that it is superior to its alternatives. It rectifies some of the normative flaws of conventional CBA without significantly compromising its methodological rigor. It also improves deontology by making the analysis of threshold constraints more precise and its policy implications potentially more determinate.

Papers by Eyal Zamir

Seeing is Believing: The Anti-Inference Bias

Indiana Law Journal, 2014

A large body of studies suggests that people are reluctant to impose liability on the basis of ci... more A large body of studies suggests that people are reluctant to impose liability on the basis of circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Current explanations for this pattern of behavior focus on factors such as the tendency of fact finders to assign low subjective probabilities to circumstantial evidence, the statistical nature of such evidence, and the fact that direct evidence can rule out with greater ease any competing factual theory regarding liability. This Article describes a set of four new experiments demonstrating that even when these factors are controlled for, the disinclination to impose liability based on indirect evidence remains. While these findings do not necessarily refute the existing theories, they indicate that these theories are incomplete and point to the existence of a deep-seated bias against basing liability on inferences-an antiinference bias. The Article discusses the potential policy implications of the new findings for procedural and substantive legal norms.

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Behavioral Studies

Oxford University Press eBooks, Jun 21, 2018

Against the background of rational choice theory, this chapter provides an overview of the behavi... more 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.

Behavioral Law and Economics

<p>In the past few decades, economic analysis of law has been challenged by a growing body ... more <p>In the past few decades, economic analysis of law has been challenged by a growing body of experimental and empirical studies that attest to prevalent and systematic deviations from the assumptions of economic rationality. While the findings on bounded rationality and heuristics and biases were initially perceived as antithetical to standard economic and legal-economic analysis, over time they have been largely integrated into mainstream economic analysis, including economic analysis of law. Moreover, the impact of behavioral insights has long since transcended purely economic analysis of law: in recent years, the behavioral movement has become one of the most influential developments in legal scholarship in general. <italic>Behavioral Law and Economics</italic> offers a state-of-the-art overview of the field. The book surveys the entire body of psychological research underpinning behavioral analysis of law, and critically evaluates the core methodological questions of this area of research. The book then discusses the fundamental normative questions stemming from the psychological findings on bounded rationality, and explores their implications for establishing the aims of legislation, and the means of attaining them. This is followed by a systematic and critical examination of the contributions of behavioral studies to all major fields of law—property, contracts, consumer protection, torts, corporate, securities regulation, antitrust, administrative, constitutional, international, criminal, and evidence law—as well as to the behavior of key players in the legal arena: litigants and judicial decision-makers.</p>

Behavioral Law and Economics - Introduction

Social Science Research Network, Jul 1, 2018

In the past few decades, economic analysis of law has been challenged by a growing body of experi... more In the past few decades, economic analysis of law has been challenged by a growing body of experimental and empirical studies that attest to prevalent and systematic deviations from the assumptions of economic rationality. While the findings on bounded rationality and heuristics and biases were initially perceived as antithetical to standard economic and legal-economic analysis, over time they have been largely integrated into mainstream economic analysis, including economic analysis of law. Moreover, the impact of behavioral insights has long since transcended purely economic analysis of law: in recent years, the behavioral movement has become one of the most influential developments in legal scholarship in general. This is the introduction of the book Behavioral Law and Economics (OUP, 2018). The book offers a state-of-the-art overview of the field. It surveys the entire body of psychological research underpinning behavioral analysis of law, and critically evaluate the core methodological questions of this area of research. The book then discusses the fundamental normative questions stemming from the psychological findings on bounded rationality, and explores their implications for establishing the aims of legislation, and the means of attaining them. This is followed by a systematic and critical examination of the contributions of behavioral studies to all major fields of law—property, contracts, consumer protection, torts, corporate, securities regulation, antitrust, administrative, constitutional, international, criminal, and evidence law—as well as to the behavior of key players in the legal arena: litigants and judicial decision-makers.

Behavioral Analysis of Commercial Law: Corporate Law, Securities Regulation, and Antitrust

Social Science Research Network, Dec 14, 2017

This chapter critically surveys the behavioral analysis of commercial law. It begins by examining... more This chapter critically surveys the behavioral analysis of commercial law. It begins by examining the preliminary question of whether bounded rationality can persist in well-functioning, highly competitive markets. As the theoretical analysis and empirical evidence demonstrate, irrational behavior is present even in such settings. The chapter goes on to discuss the implications of behavioral analysis for key issues within corporate law, securities regulation, and antitrust law. These include the ramifications of managers’ overconfidence and passive boards; the bounded rationality of retail investors; and the effect of behavioral phenomena on market competition. The chapter concludes with discussion of the critiques leveled against the behavioral analysis of commercial law.

כלכלה התנהגותית ודיני חוזים: תובנות תיאורטיות וממצאים אמפיריים Behavioral Economics and Contract Law: Theoretical Insights and Empirical Findings

Social Science Research Network, Dec 29, 2016

תקציר בעברית: בשנים האחרונות, תובנות התנהגותיות וממצאים אמפיריים ואקספרימנטליים תרמו רבות להבנה ש... more תקציר בעברית: בשנים האחרונות, תובנות התנהגותיות וממצאים אמפיריים ואקספרימנטליים תרמו רבות להבנה של חוזים ודיני חוזים. התובנות ההתנהגותיות מעמידות בספק כמה מהמסקנות של הניתוח הכלכלי המסורתי של דיני החוזים והן רלוונטיות גם לגישות אחרות לדיני חוזים העוסקות באופן שבו משפיעים דינים אלה על התנהגות הצדדים, שכן התנהגות הצדדים מושפעת מהפסיכולוגיה האנושית. המאמר פותח בהצגת תיאוריה התנהגותית של חוזים, המדגישה את תפקידם של ערכים כגון קיום הבטחות ואמון, ובוחן האם וכיצד התפקיד שממלאים ערכים אלה ביחסים החוזיים מושפע מהשאלה אם מדובר בחוזה שהוא פרי משא ומתן, או שמא בחוזה אחיד. לאחר מכן בוחן המאמר סוגיות קונקרטיות בדיני חוזים מפרספקטיבה התנהגותית, ובהן: משא ומתן טרום חוזי, תוך שימת דגש מיוחד על תפקידן של הוראות השלמה דיספוזיטיביות ונקודות ייחוס אחרות; כריתת חוזה; פירוש והשלמה; קיום; ותרופות בשל הפרה, לרבות תרופות מוסכמות. English Abstract: In recent years, behavioral insights and empirical and experimental findings have greatly contributed to the understanding of contracts and contract law. The behavioral insights challenge some of the claims of standard economic analysis, and they are relevant to other approaches that examine the impact of the law on people’s behavior, as people’s behavior is affected by human psychology. This Article begins by laying out a behavioral theory of contracts, which emphasizes the role of factors such as promise keeping and trust, and examines how these factors are affected by the mode of contracting—individually negotiated versus standard-form contracts. The Article then explores concrete areas of contract law through a behavioral prism, including pre-contractual negotiations, with special emphasis on the role of default rules and other reference points; contract formation; contract interpretation and supplementation; performance; and remedies for breach of contract, including agreed-upon remedies.

New Evidence About Circumstantial Evidence

Social Science Research Network, Sep 6, 2016

Judicial fact-finders are commonly instructed to determine the reliability and weight of any evid... more Judicial fact-finders are commonly instructed to determine the reliability and weight of any evidence, be it direct or circumstantial, without prejudice to the latter. Nonetheless, studies have shown that people are reluctant to impose liability based on circumstantial evidence alone, even when this evidence is more reliable than direct evidence. Proposed explanations for this reluctance have focused on factors such as the statistical nature of some circumstantial evidence and the tendency of fact-finders to assign low subjective probabilities to circumstantial evidence. However, a recent experimental study has demonstrated that even when such factors are controlled for, the disinclination to impose liability based on non-direct evidence — dubbed the anti-inference bias — remains. The present Article describes seven new experiments that explore the scope and resilience of the anti-inference bias. Intriguingly, it shows that this bias is significantly reduced when legal decision-makers confer benefits, rather than impose liability. In so doing, the Article points to a new legal implication of the psychological phenomenon of loss aversion. In contrast, the Article finds no support for the hypothesis that the reluctance to impose legal liability on the basis of circumstantial evidence correlates with the severity of the legal sanctions. It thus casts doubt on the common belief that sanction severity affects the inclination to impose legal liability. Finally, the Article demonstrates the robustness of the anti-inference bias and its resilience to simple debiasing techniques. These and other findings reported in the Article show that the anti-inference bias reflects primarily normative intuitions, rather than merely epistemological ones, and that it reflects conscious intuitions, rather than wholly unconscious ones. The Article discusses the policy implications of the new findings for procedural and substantive legal norms.

Nudge Goes International

European Journal of International Law, Nov 1, 2019

This article introduces the concept of nudge – low-cost behaviourally informed modes of regulatio... more This article introduces the concept of nudge – low-cost behaviourally informed modes of regulation that influence people’s decisions without limiting their choice set – into the behavioural analysis of international law. It sketches out the pathways through which nudges might influence the behaviour of countries, and highlights the normative implications associated with utilizing these regulatory tools in the international arena. That done, the article presents numerous case studies that demonstrate how nudges such as defaults, goals and rankings are integrated into the international legal terrain.

Economic Analysis of Law: An Overview

Behavioral Law and Economics, 2018

While behavioral insights are vital to any theory of law, they are particularly important as qual... more While behavioral insights are vital to any theory of law, they are particularly important as qualifiers of standard economic analysis of law. Standard economic analysis assumes that people are rational maximizers of their own utility. As a normative theory, it ultimately takes into account only human welfare and focuses on maximization of aggregate social utility. This chapter offers a bird’s-eye view of economic analysis of law. It describes the main features of economic analysis in general, with a focus on positive economics, followed by a description of the tenets of the normative branch of economic analysis known as welfare economics.

Normative Implications

Behavioral Law and Economics, 2018

This chapter discusses the normative implications of the psychological findings documenting devia... more This chapter discusses the normative implications of the psychological findings documenting deviations from rationality, with particular focus on fundamental issues that cut across different legal fields. It first outlines the contribution of happiness studies and heuristics-and-biases research to theories of human welfare and the formulation of normative theories. The chapter then focuses on the normative significance of prevailing moral judgments (as studied by moral psychologists) for legal policymaking. Moving on to more pragmatic issues of lawmaking, the chapter examines two major implications of behavioral studies for setting the goals of legal norms: preventing the exploitation of people’s cognitive biases by others, and protecting people from their own fallibility. Finally, turning from goals to means, the discussion highlights the contribution of behavioral studies to the design of disclosure duties and behaviorally informed regulation (nudges).

Contract Law

Oxford University Press eBooks, Jan 21, 2010

This chapter discusses contract law. Ordinarily, market transactions do not involve infringements... more This chapter discusses contract law. Ordinarily, market transactions do not involve infringements of deontological constraints. For this reason (and since they usually involve money or easily monetized goods), standard cost-benefit analysis is particularly apt for analyzing contract law. Nevertheless, it is argued that certain deontological constraints apply to contracting behavior and that combining deontological constraints with economic analysis of contract law, may be fruitful. The chapter briefly surveys the deontological constraints pertinent to contract law and critically examines the standard economic response to them. It then demonstrates how deontological constraints may be integrated with economic analysis of the contracting stage, focusing on the doctrines of mistake and misrepresentation. Last, it highlights the differences between economic and deontological analyses of contract performance and breach, and discusses the difficulties facing integration of deontological constraints with the economic analysis of contract remedies, given the current state of the pertinent theories.

Loss Aversion

Law, Psychology, and Morality, 2014

The Oxford Handbook of Behavioral Economics and the Law

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Consumer Behavior

Law, Psychology, and Morality, 2014

Tax Law and Redistribution

Behavioral Law and Economics, 2018

This chapter examines the implications of behavioral insights for tax design, taxpayers’ decision... more This chapter examines the implications of behavioral insights for tax design, taxpayers’ decision-making, and tax compliance. With regard to tax design, the chapter discusses policymakers’ own heuristics and biases, and their catering to (or exploitation of) the biased judgments of the public at large. Regarding economic decision-making, the chapter explores the dark and bright sides of tax saliency. With regard to compliance, it explains why people pay taxes, and how this compliance might be further enhanced. Finally, the chapter explains how cognitive factors affect taxpayers’ inclination to challenge tax liability. Additionally, the chapter describes the behavioral contribution to positive and normative analyses of redistribution, by shedding new light on how people form judgments about tax progressivity; the cognitive ramifications of poverty; wealth and subjective well-being; and the choice between methods and objects of redistribution. The chapter also comments on the use of t...

Substituting Invalid Contract Terms: Theory and Preliminary Empirical Findings

SSRN Electronic Journal, 2019

The law often lays down mandatory rules, from which the parties may deviate in favor of one party... more The law often lays down mandatory rules, from which the parties may deviate in favor of one party but not the other. Examples include the invalidation of high-liquidated damages and the unenforceability of excessive noncompete clauses in employment contracts. In these cases, the law may substitute the invalid term with a moderate arrangement, with a punitive arrangement that strongly favors the protected party, or with a minimally tolerable arrangement (MTA), which preserves the original term as much as is tolerable. This article revisits the choice between the various substitutes. Based on theoretical analysis and five new empirical studies (N = 2,089), it argues that the incidence of MTAs should be rather limited. It demonstrates that people find moderate substitute arrangements more attractive than the alternatives. It also points to two overlooked incentive effects of the substitute arrangement (in addition to its impact on the drafting of contracts). First, the applicable substitute strongly influences customers’ inclination to challenge excessive contract terms once a dispute arises. Second, when the invalidation of an excessive term is discretionary, the applicable substitute can affect decision makers’ inclination to invalidate excessive clauses in the first place.

Antidiscrimination Laws

Law, Economics, and Morality, 2010

This chapter examines discrimination in the marketplace and, more specifically, the legitimacy an... more This chapter examines discrimination in the marketplace and, more specifically, the legitimacy and appropriate scope of anti-discrimination legislation. Following a brief survey of current legal norms, it relies on positive economic analysis to explain possible motivations for discrimination. It then examines the efforts made to justify anti-discrimination legislation on standard efficiency grounds. It argues that these efforts are unsuccessful. Rather, the appropriate way to adequately capture the issues pertaining to market discrimination is to directly take into account a deontological constraint against harming people by discriminating against them. The chapter analyzes the deontological constraint against discrimination, examines the relationships between this constraint and distributive bases for anti-discrimination legislation, and demonstrates how current legal norms are best understood as resting on moderate deontology and embodying threshold constraints.

Contract Theory: A View From the Other Side of the Atlantic

Jotwell: The Journal of Things We Like, 2017

Behavioral Economics and Court Decision-Making

Review of Law & Economics, 2021

The economic analysis of law assumes that court decisions are key to incentivizing people and max... more The economic analysis of law assumes that court decisions are key to incentivizing people and maximizing social welfare. This article reviews the behavioral literature on court decision making, and highlights numerous heuristics and biases that impact judges and jurors and cause them to make decisions that diverge from the social optimum. In light of this review, the article analyzes some of the institutional features of the court system that may help minimize the costs of biased decisions in the courts.

Eyal Zamir and Barak Medina, LAW, ECONOMICS, AND MORALITY (Oxford University Press, 2010)

by barak medina and Eyal Zamir

Seeing is Believing: The Anti-Inference Bias

Indiana Law Journal, 2014

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Behavioral Studies

Oxford University Press eBooks, Jun 21, 2018

Behavioral Law and Economics

Behavioral Law and Economics - Introduction

Social Science Research Network, Jul 1, 2018

Behavioral Analysis of Commercial Law: Corporate Law, Securities Regulation, and Antitrust

Social Science Research Network, Dec 14, 2017

כלכלה התנהגותית ודיני חוזים: תובנות תיאורטיות וממצאים אמפיריים Behavioral Economics and Contract Law: Theoretical Insights and Empirical Findings

Social Science Research Network, Dec 29, 2016

New Evidence About Circumstantial Evidence

Social Science Research Network, Sep 6, 2016

Nudge Goes International

European Journal of International Law, Nov 1, 2019

Economic Analysis of Law: An Overview

Behavioral Law and Economics, 2018

Normative Implications

Behavioral Law and Economics, 2018

Contract Law

Oxford University Press eBooks, Jan 21, 2010

Loss Aversion

Law, Psychology, and Morality, 2014

The Oxford Handbook of Behavioral Economics and the Law

Download

Consumer Behavior

Law, Psychology, and Morality, 2014

Tax Law and Redistribution

Behavioral Law and Economics, 2018

Substituting Invalid Contract Terms: Theory and Preliminary Empirical Findings

SSRN Electronic Journal, 2019

Antidiscrimination Laws

Law, Economics, and Morality, 2010

Contract Theory: A View From the Other Side of the Atlantic

Jotwell: The Journal of Things We Like, 2017

Behavioral Economics and Court Decision-Making

Review of Law & Economics, 2021

Criminal Law and Enforcement

Behavioral Law and Economics, 2018

This chapter surveys the contributions of behavioral studies to the analysis of criminal law and ... more This chapter surveys the contributions of behavioral studies to the analysis of criminal law and law enforcement. It begins by introducing the key insights of economic analysis of crime control. It then examines the extent to which people’s moral judgments are compatible with the dictates of economic analysis in this sphere—and the associated normative implications. It proceeds to analyze the ramifications of behavioral findings regarding how people perceive probabilities and sanctions for deterrence theory. The chapter e also examines the contribution of research in the area of behavioral ethics to crime control. Finally, it discusses the implications of behavioral research for recidivism.

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