Legal Update

Behavioral and empirical analysis of law in Israel: Thoughts on moving toward a global research community

An examination of the current divide between the psychology and law and behavioral analysis of the law academic communities.

By Yuval Feldman

Dennis asked me to describe for AP-LS News the research conducted in Israel by two related communities to which I belong: empirical legal studies (ELS) and the behavioral analysis of law (sometimes known as behavioral law and economics [BLE]). At the outset, it is important to note that although there is an overlap between the behavioral and the empirical perspectives, these are obviously not the same. Some behavioral law is theoretical, and probably most of the ELS could not be defined as behavioral (see, for example, Eisenberg et al., 1997). Israel may be an interesting example of the global outreach of these movements, being on one hand highly influenced by the U.S. academically (the vast majority of scholars in Israel obtained their PhD or postdoc in the U.S.), but at the same time is part of the EU for academic purposes, and therefore Israeli scholars participate in most European research networks.

On a personal note, while I am attempting to focus on the Israeli perspective, having spent about half of my academic life in the U.S., some of it in law schools and some in psychology departments, I feel that I have some perspective on both the psych-law and the behavioral law communities in both countries. Moreover, my initial familiarity with U.S. academic life is highly related to the AP-LS-BLE tension. I came to the U.S. 15 years ago, planning to study for a PhD in law and psychology, and I ended up in the BLE/ELS camps. A large part of that decision of choosing a graduate program had to do with the provincial perspective in Israel, where academic jobs are available only to graduates of a handful of universities — none of which had a graduate program in law and psychology at the time. The take-away of this anecdote is that owing to the dominance of law and economics, it is much easier to find advisors in BLE and ELS. It is easier for many of the international scholars who come to the U.S. and plan on having their career elsewhere to become experts in BLE than in the more traditional field of law and psychology.

I would like to use this opportunity to ponder on some questions that have gnawed at me since I graduated concerning the huge divide between scholars of the BLE and the academic community of psychology and law, including AP-LS. I think that this divide is a huge loss to both communities. Although there are some differences in the focus of the communities, they are complementary in more than one way. I hope scholars from both communities, in the U.S. and in the global market of ideas, will learn to recognize the mutual gain from greater interaction.

Law and Psychology vs. Behavioral Analysis of Law

The behavioral analysis of law (the younger of the two communities that now enjoys high visibility at law and economics conferences and at empirical legal studies conferences) is different from the more traditional law and psychology movement on several grounds.

First, simplistically, we could say that BLE scholarship focuses more on understanding ordinary people in everyday situations, with greater focus on private and public law, whereas law and psychology scholarship takes a more forensic approach and focuses on topics that are in direct relevance to the evaluation of specific people, which courts need to know about, mainly in criminal and family law contexts. In addition, even the research in done on exposing various biases at work within criminal and civil procedures, which is more closely related to research done in ELS (e.g., Rachlinski et al, 2009), is sometimes done in context of particular people with regard to a particular case (e.g., jury selection and jury decision making). In contrast, much of the practical output of the BLE community is manifest through communication with regulators, legislatures and behavioral insight teams, a great deal of the knowledge discussed focuses on people in general, situational context and the effect of law on people in general. The court orientation that is sometimes present in AP-LS scholarship limits its applicability within such regulatory and legislative contexts.

Second, the interaction with economics and behavioral economics is key in this tradition, where the insights of psychology are being incorporated into law through economic lenses. (For a review, see Ulen & Korobkin, 2000; recently, the third “Oxford Handbook Behavioral Law and Economics” was edited by two of my colleagues from Israel, Zamir & Teichman) . Economics or law and economics have not gained dominance in AP-LS classical scholarship, which limits AP-LS scholarship's ability to communicate with many legal scholars who work either with concepts developed by law and economics or focus on criticizing their relevance. At the same time, because of the dominance of economics, many areas of psychology that are less suitable for economics are being ignored, while theories related to judgment and decision making seem to get most of the attention.

Limitations of the Current Communication Between the Fields

Naturally, I am not arguing that these two communities need to be identical; they have different research agendas and some differences in focus are expected. Nonetheless, at the same time I wonder how the communities would evolve if there was greater communication between them. For example, would more areas of psychology be applied to private law contexts if there were greater interaction between the two communities?

As suggested above, few papers in the tradition of the behavioral analysis of the law focus on personality or developmental psychology. Much of the behavioral analysis that is common in Israel and likely to be discussed at conferences such as the American Law and Economics Association, ELS or the International Society for New Institutional Economics, is inspired by the effect of Tverski and Kahneman on decision making (e.g., Kahneman, 2003). Admittedly, the role of economics has been highly fruitful for the behavioral approach to law. It provided the field with normative coherence and with great ability to interact with legal policy making, partly because of the dominance of law and economics in U.S. law schools and in legal policy making. I think that in some ways expanding the behavioral analysis of law beyond the dominance of behavioral economics depends on a change in perspective by AL-PS members. To examine the likelihood that the two communities will prosper globally by mutual interaction, it may be useful to understand the popularity of the behavioral and of the empirical analysis of law in Israel.

Relative Popularity of BLE and ELS in Israel

I have not examined this question empirically, but it seems to me that there are more scholars from Israel at ELS annual conferences than from any other non-U.S. country (one must contend with a long list of biases, however, availability being an obvious example, which could explain why my perception may be inaccurate). This type of observation has been shared in the past by Oren Gazal-Ayal from Haifa, in the context of law and economics (Gazal-Ayal, 2007).

Like scholars from other countries, for Israeli scholars to be promoted, they must be published in top U.S. journals (naturally, this is not the case in all countries, and I think the exact opposite may be true when it comes to the legal academia of larger European countries). The need to be published in U.S. journals in order to be promoted provides an obvious advantage to legal scholars educated in the U.S. The argument that Gazal-Ayal raised with regard to law and economics is that Israelis who want to participate in the global market of ideas, with special emphasis on the U.S. academic market, focus on law and economics, which tends to be a more universal area, certainly relative to more doctrinal areas of research, which are more jurisdiction-dependent. One wonders whether this may be the case with regard to empirical legal studies, and even more so to BLE. In principle, many similarities can be found; in both approaches, the necessary knowledge of the doctrine is minimal, the knowledge of math and/or statistics could replace knowledge of U.S. law and both partly rely on disciplinary fields that claim to be universal (e.g., economics or psychology). But there are also some notable differences between the two communities of knowledge. First, in many strands of empirical legal studies, much of the development process of an argument consists of collecting data about legally relevant institutions. At many of these institutions, the variation between countries is such that when brought as evidence, it could never affect American legal policy, without further “local” findings. Another strand of empirical legal studies is based on experimental methods. Admittedly, in most aspects of experimental psychology, the country where the experiment was conducted is not as important, but in the experimental legal analysis, questions of cultural context can play a much larger role, as in the case in other applied sciences.

From this perspective, I cannot see many reasons for a difference between the development of a global law-psych community and that of global ELS. Some differences may exist with regard to the role of the courts, including juries and various procedures that vary across countries. The difference is greater in AP-LS, which tends to be more culture specific. For example, collaboration across countries, which we can see with the development of the behavioral insight team, is easier to accomplish because of the limited role of legal institutions (Amir & Lobel, 2009; Feldman & Lobel, 2015).

Differences in Methods

Another area where it is necessary to bridge the gap between the two communities is methods. The difference between behavioral ELS methods and those of psychology, which are more likely to be used in the AP-LS community, has to do with methodological norms we see in psychology journals but not in ELS scholarship. Among these are norms related to “open science” and a need to state in advance the research hypotheses and planned number of experiments. I also see the requirement for replication, which is not yet present at the same level in ELS scholarship, where it may be acceptable to have a paper with one experiment (as in some economics papers). Moreover, although this is changing, as of now the number and sophistication of behavioral measures in psychological journals, is more extensive than those I usually (but not always) see in legal publications. Compare with Tor (2008).

At the same time, ELS has some areas that may suggest that its methodology is superior. For example, regarding the type of participants, I have noticed researchers draw criticisms at ELS conferences that they would not draw at psych conference. The expectation for multiple methods seems to be more common among legal reviewers of grant proposal, in a way that you would not always expect from pure psych grant applications, although this is changing too. Along the same lines, the need to take into account various theories and alternative explanations, even from different disciplines, is not at the same level in psych research, where it is more common to rely only on one theoretical school of thought. The fact that in contrast to psychology or economics, ELS does not hold a clear agency model, has both positive and negative effects on the freedom of choosing methods that could be used to map a certain phenomenon (e.g., no firm expectation to use an incentive-compatible design).

To summarize this short note, although there are some justifiable differences between the BLE and AL-PS perspectives in both methods and theories, it seems that much of the difference has to do with path dependencies rather than differences in research agendas. As suggested above, the regulation platform may be more likely to lend itself to international collaboration than does the court platform. There are many concepts developed in AP-LS scholarship that have international appeal, even when they emerge from American concepts such as jury research. It seems that a more important bridge between AL-PS and legal behavioral research conducted in Israel and other countries may be established through greater interaction between the two research communities in the U.S. I hope that with increased flow of ideas and methods between the behavioral and the psych-law communities, we will also witness a greater flow of ideas between the U.S. and the research communities of other countries.

References

Amir, O., & Lobel, O. (2009). Stumble, predict, nudge: How behavioral economics informs law and policy. Columbia Law Review, 108, 2098.

Eisenberg, T., Goerdt, J., Ostrom, B., Rottman, D., & Wells, M. T. (1997). The predictability of punitive damages. The Journal of Legal Studies, 26(S2), 623-661.

Feldman, Y., & Lobel, O. (2014). Behavioral trade-offs: Beyond the land of nudges spans the world of law and psychology. San Diego Legal Studies Paper No. 14-158.

Gazal-Ayal, O. (2007). Economic analysis of law and economics. Capital University Law Review, 35, 787–797. http://weblaw.haifa.ac.il/he/Faculty/GazalAyal/Publications/Analysis percent20of percent20Law percent20and percent20Economics.pdf

Kahneman, D. (2003). Maps of bounded rationality: Psychology for behavioral economics. American Economic Review, 93(5), 1449-1475.

Rachlinski, J. J., Johnson, S. L., Wistrich, A. J., & Guthrie, C. (2009). Does unconscious racial bias affect trial judges? Notre Dame Law Review, 84(3), 09-11.

Tor, A. (2008). The methodology of the behavioral analysis of law. Haifa Law Review, 4, 237.

Ulen, T., & Korobkin, R.S. (2000). Law and behavioral science: Removing the rationality assumption from law and economics. California Law Review, 88.