Failed Gods of Behavioral Law & Economics

At this week’s International Association of Consumer Law conference, scholars from Europe and Brazil, among others, embraced the new orthodoxy of behavioral law and economics. As I have argued elsewhere, the important insights of behavioral science have important normative implications (and law is about norms) that have been largely ignored. Behavioralism undermines two key tenets supporting the edifice of neoclassical law and economics: 1) that unregulated markets promote consumer autonomy, i.e. freedom of choice, and 2) that this consumer autonomy happily and simultaneously advances the utilitarian value of maximizing consumer welfare.