What's Available - Social Influences and Behavioral Economics Empirical Legal Realism: A New Social Scientific Assessment of Law and Human Behavior

I. INTRODUCTION Human cognition does not take place in a social vacuum. When a particular incident becomes cognitively "available," it is because of social influences. Individuals are especially averse to losses; but how do we know whether we are facing a loss or instead a foregone gain? What is the status quo from which losses are measured? Social understandings provide the answer. Individuals often think and work in groups; do group interactions aggravate or reduce some of the harmful effects of heuristics and biases?1 If heuristics and biases sometimes lead people to make bad decisions, in a way that seems to justify paternalism, the flow of information is a crucial reason. Can anything be done-by individuals, government, or the law-to improve information flow and perhaps to ensure "debiasing" in the process? Or consider the fact that people care about fairness and are willing to punish, at their own expense, those who behave unfairly.2 How might social influences reduce or increase people's willingness to sacrifice their material self-interest for the sake of fairness? My goal in this Essay is to suggest that we will have a far better understanding of the relationship between behavioral economics and law if we investigate the connection between behavioral findings and social influences. The real-world effects of heuristics and biases are very much a function of social pressures, including, but not limited to, the law. Well-organized private groups, showing a working knowledge of behavioral economics and a willingness to exploit it for their benefit, play a central role here. But to say this is to get ahead of the story. Begin with an example. A. Snipers In fall 2002, a pair of snipers killed ten people in the Washington, D.C. area. The victims were randomly chosen. They included men and women, young and old, whites and African Americans. Each of these murders was a tragedy, of course, but the actions of the snipers affected millions of others as well. Many citizens were afraid that they would be next. Fear, sometimes dull and sometimes very sharp, seemed to grip much of the area, and it significantly affected the behavior of D.C.-area residents. "What has seized the capital of the world's only superpower in fear, the real palpable fear that causes people to wear bullet-proof vests to pump gas and football teams to practice indoors, is a sniper with an assault rifle."3 Consider the following manifestations of this fear: * Many school districts placed their classes under a "code blue," which means that students must stay inside school buildings and cannot leave campus for lunches or outdoor activities; nearly one million children were affected.4 * October SAT testing at several area schools was canceled.5 * Recreation league soccer for six-year olds, high school girls' tennis and field hockey, and baseball, were all canceled or postponed.6 * In Winchester, Virginia, all school field trips were canceled.7 * The Glory Days Grill Invitational Bull Run in Manassas, Virginia, a track meet that attracts over 2,000 runners, was canceled.8 * About fifty area Starbucks stores removed their outside seating.9 * The Prince George's County school system canceled all athletic events indefinitely.10 * The D.C. Stoddert Soccer League, with more than 5,000 players, ages four to nineteen, called off games; youth leagues in Maryland and Virginia were told to follow the lead of the school systems, most of which canceled outdoor events." * Many people stopped going to health clubs with large front windows, and some took to wearing body armor while pumping gas or shielding themselves with a car door to keep safe.12 But there is something very odd about the extraordinary effects of the snipers' actions. For people in the relevant area, the snipers caused a miniscule increase in risk. If there were five million people in the D.C. …