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Law and Behavioral Biology Owen D Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 2005 Law and Behavioral Biology Owen D. Jones Timothy H. Goldsmith Yale University Follow this and additional works at: https://scholarship.law.vanderbilt.edu/faculty-publications Part of the Behavioral Economics Commons, Biology Commons, and the Law Commons Recommended Citation Owen D. Jones and Timothy H. Goldsmith, Law and Behavioral Biology, 105 Columbia Law Review. 405 (2005) Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1063 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. +(,1 2 1/,1( Citation: 105 Colum. L. Rev. 405 2005 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Jun 15 13:27:19 2012 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0010-1958 Retrieved from DiscoverArchive, Vanderbilt University’s Institutional Repository This work was originally published in 105 Colum. L. Rev. 405 2005. LAW AND BEHAVIORAL BIOLOGY Owen D. Jones* & Timothy H. Goldsmith** Society uses law to encourage people to behave differently than they would behave in the absence of law. This fundamental purpose makes law highly dependent on sound understandingsof the multiple causes of human behavior. The better those understandings,the better law can achieve social goals with legal tools. In this Article, ProfessorsJones and Goldsmith argue that many long-held understandings about where behavior comes from are rapidly obsolescing as a consequence of developments in the various fields constitutingbehavioral biology. By helping to refine law's understandingsof behavior's causes, they argue, behavioral biology can help to improve law's effectiveness and efficiency. Part I examines how and why law and behavioral biology are con- nected. PartII provides an introduction to key concepts in behavioral biol- ogy. PartIII identifies, explores, and illustrates a wide variety of contexts in which behavioral biology can be useful to law. Part IV addresses concerns that sometimes arise when considering biological influences on human behavior. INTRODUCTION .................................................. 407 I. LAw, BEHAVIOR, AND BEHAVIORAL MODELS ................ 411 A. The Relationship Between Law and Behavior ......... 412 B. The Relationship Between Law and Behavioral M odels .............................................. 413 C. Contemporary Behavioral Models .................... 416 D. The Relationship Between Behavioral Models and Behavioral Biology ................................... 421 II. BEHAVIORAL BIOLOGY ..................................... 423 * Professor of Law & Professor of Biological Sciences, Vanderbilt University. B.A. Amherst College; J.D. Yale Law School. The authors received many useful comments on various aspects of this work from participants in Harvard Law School's Law and Economics Seminar, the University of Michigan Law School's Law and Economics Workshop, a Vanderbilt University Law School faculty seminar, a UCLA School of Law Colloquium, a presentation for Stanford Law School's Center for Law and the Biosciences, a symposium of the Yale University Department of Molecular, Cellular, and Developmental Biology, a conference of the Gruter Institute for Law and Behavioral Research, and the Annual Scholarship Conference of The Society for Evolutionary Analysis in Law (SEAL). We are particularly grateful for detailed comments on earlier versions from Louis Kaplow, Jeffrey Stake, Erin O'Hara, John Alcock, Ron Rutowski, Kingsley Browne, Paul Andrews, and Lydia Jones. Michael Saks, David Faigman, Steven Goldberg, J.B. Ruhl, Tom Ulen, John Monahan, and Andrew Daughety offered key insights and information on important pieces of the work. Charles Trumbull, Mariya Tytell, Michael Burgoyne, Michelle Notrica, and Rajeev Ruparell provided able research assistance. Vanderbilt University and Arizona State University provided research support. Direct correspondence to owen.jones@vanderbilt. edu. ** Professor Emeritus of Molecular, Cellular, and Developmental Biology, Yale University. B.A. Cornell University; Ph.D. Harvard University. HeinOnline -- 105 Colum. L. Rev. 405 2005 COLUMBIA LAW REVIEW [Vol. 105:405 A. Behavioral Biology's Relationship to Other D isciplines ........................................... 424 B. Some Foundational Concepts ........................ 426 1. From Genes to Behaviors Through Environments and Brains ....................................... 427 2. The Effects of Evolutionary Processes ............. 428 3. Cooperation and Conflict ........................ 430 III. BEHAVIORAL BIOLOGY IN LAw: FUNCTIONS AND CO rmBUTIONS .......................................... 431 A. Patterns, Policy Conflicts, and Causal Links ........... 431 1. Discovering Useful Patterns in Regulable Behavior ......................................... 432 2. Uncovering Policy Conflicts ...................... 435 3. Sharpening Cost-Benefit Analyses ................. 436 4. Clarifying Causal Links ........................... 436 B. Evolutionary Insights About Decisions ................ 438 1. Increasing Understanding About People .......... 438 a. Fairness ...................................... 439 b. Spite ......................................... 441 2. Providing Theoretical Foundation and Potential Predictive Power ................................. 442 a. The Puzzle of Irrational Behaviors ............ 443 b. Expanded Perspectives on the Human B rain ........................................ 446 c. Examples of Apparent Irrationality ........... 449 i. Irrationally Steep Discounting ............ 449 ii. Mistaken Assessments of Probability ....... 451 iii. Endowment Effects ....................... 452 C. Causes and Assumptions ............................. 454 1. Disentangling Multiple Causes .................... 454 2. Exposing Unwarranted Assumptions .............. 457 D. The Law of Law's Leverage .......................... 459 1. Assessing the Comparative Effectiveness of Legal Strategies ........................................ 461 E. Structures and Effects of Law ........................ 465 1. Revealing Deep Patterns in Legal Architecture .... 466 a. Topics and Content .......................... 466 b. Tools and Effort ............................. 470 c. Biolegal H istory .............................. 471 2. Identifying Selection Pressures that Law Creates .. 475 a. Other Organisms ............................. 475 b. H um ans ..................................... 477 3. Highlighting Legal Changes Through Evolutionary M etaphor ........................................ 479 IV. CAUSE FOR PAUSE: SOME CONCERNS ADDRESSED ............ 484 HeinOnline -- 105 Colum. L. Rev. 406 2005 2005] LAW AND BEHAVIORAL BIOLOGY 407 A. The Realms of Fact and Meaning: Separating "Is" from "O ught" ... .................................... 484 B. Some Specific Concerns .............................. 485 1. Genetic Determinism ............................ 485 2. Sexism .......... ............................ 488 3. Social Darwinism; Social Spencerism .............. 492 4. Eugenics ......................................... 494 5. R acism ........................................... 496 C. Balancing Risks ...................................... 499 CONCLUSION .................................................... 499 INTRODUCTION In all but a few universities, human behavior is studied by social scientists in one set of buildings, while the behavior of every species ex- cept humans is studied by life scientists in other buildings. There are reasons for this-but few good ones. The division reflects a long history of scholarly traditions moving on separate tracks. To be sure, there are gains from specialization. But there are also losses from impeded exchange of knowledge, insufficient synergy, and a scholarly isolation that allows crossdisciplinary inconsisten- cies to lurk unnoticed. These in turn enable longstanding but dis- ciplinarily constricted conceptions of human behavior to harden into the received truths of the next academic generation. This poses increasingly significant problems for legal thinkers, for human behavior is the very currency in which law deals. Helping to gov- ern how humans behave and interact with one another, in their myriad individual and collective ventures and misadventures, is a-perhaps the-principal reason law exists. Law consequently has an unending need for improved understandings of how and why humans behave as they do. Yet there is no widespread consensus in law that a deeper under- standing of the causes of human behavior is really necessary for the day- to-day work. And among those who consider a deeper understanding de- sirable, there is no standard method for seeking, extracting, and develop- ing that information from among the ranging disciplines. Viewed as a whole, the process by which law
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