How the behavioural turn in law and economics vindicates the New Haven School

Abstract

This article claims that the behavioural turn in Law and Economics vindicates the approach of the pre-turn New Haven School. Available accounts of the turn offer useful methodological insights but are unconvincing, because they tend to oversimplify the literature. Building on these insights, the pre- and post-turn literature are reviewed. In so doing, three levels of analysis—normative, descriptive, and prescriptive— are distinguished. Comparing the two strands of literature shows that some pre-turn positions are more in accord with the post-turn literature than others. Importantly, the approach of the Chicago School— mainstream in the pre-turn literature—has been deeply influenced by the turn, whereas the one of the New Haven School—then subjacent—is substantially compatible with the post-turn mainstream positions. It follows, then, that the turn vindicates, at least theoretically, the approach of the New Haven School.