Reducing the Social Costs of (Some) Priors

Abstract

Law and economics holds that people are rational maximizers of their own self-interest. What people regard as being in their interest turns enormously on their priors -- which include, among other things, their beliefs, temperaments, sense of identity and identification, values, and other aspects of their mental states -- as does how they should act to pursue their self-interest. The priors of most interest to law are, of course, those that are societally problematic (consider, for instance, a prior that no matter what one does, one will be accused and convicted of a crime, or a prior that one is entitled to “take advantage” no matter what the cost is to others). How can they be changed? Priors are, unsurprisingly, sticky. Constantly revisiting one’s priors is completely untenable, if only because of the cognitive resources it would require. But might it be possible to change problematic priors by increasing the (internal psychic, and external, especially reputational) costs to retaining them when they are not sufficiently well-supported? My account of priors owes much to a long tradition in various fields in the social sciences and the humanities. Akerlof & Kranton’s work on identity is of particular relevance. But thus far, with the notable exception of Yale’s Cultural Cognition project, there has not been much consideration of the extent to which law-related inquiries, particularly within a law and economics/behavioral law and economics framework, could benefit from a consideration of priors. An inquiry into priors risks being about nothing -- and everything. It is far easier to make the case that incorporating priors into behavioral law and economics will significantly aid realism (or predictive or explanatory power) than to know how to do so parsimoniously. Here, I seek to make the case that the importance of the task warrants taking up that challenge.