Seminar 6: Choosing rules

This seminar brings together two apeects of law and economics.  First, the rules versus standards debate. You will find this set out clearly in the paper by Korobkin and also in the Weber paper at the start.  Then I want to also try and discuss the role of behavioural economics. Youw ill find an approach to the rules versus standards debate from this perspective in the last part of the Korobkin paper. 

I have then added a paper by Sunstein that I hope allows us to revisit both approaches. The paper is by the leading proponent of behavioural economics, and this one develops the ‘nudge’ approach he and Thaler popularised in 2008 with a book by that name.  Then I aslo want to think about his approach to ‘default’ rules and whether they fit into, or add to, the rules versus standards debate.

Some questions below, it may help to receive some of your responses before the seminar, just write them as a comment below.

Readings

Korobkin ‘Behaviourl Analysis and Legl Form: Rules vs Standards revisited’ [2000] 79 Oregon Law Review 23

Weber ‘European Integration assessed in the light of the “rules vs. standards debate”‘ (2013) 35 European Journal of Law and Economics 187

Sunstein ‘Deciding By Default’ (2013) 162 University of Pennsylvania Law review 1

Questions

1. Identify, within the fields of yoru research, a good example where teh rules versus standards debate is relevant and consider to what extent the law has made the right choice when measured by the economic benchmarks of the rules/standards debate.

2. how far does behavioural economics affect the rules v standards debate (and as an ancillary question, how does one justify a behavioural economics approach as opposed to a Chicagoan approach? How does behavioural economics fit within the approach of Williamson and other NIE scholars?)

3. Does Weber make a convincing application of the debate to EU Law?

4. Are there any examples of default rules in your area of research? if so explain them and discuss.

5. Do default rules require regulation?

 

2 comments on “Seminar 6: Choosing rules

  1. giorgiomonti says:

    By the way, as further reading you can have a look at Kaplow ‘Rules versus Standards: An Economic Analysis’ (1988) 42 Duke Law Journl 557. Bit too long for the main reading list.

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