In the past few decades, economic analysis of law has been challenged by a growing body of experimental and empirical studies that attest to prevalent and systematic deviations from the assumptions of economic rationality. While these insights were initially perceived as antithetical to standard economic and legal-economic analysis, over time they have been largely integrated into mainstream economic analysis, including economic analysis of law. Moreover, the impact of behavioral insights has long since transcended purely economic analysis of law: in recent years, the behavioral movement has become one of the most influential developments in legal scholarship in general.
While there have been some behavioral analyses of constitutional and administrative law issues, the impact of behavioral studies on public and international law — with the notable exceptions of regulation techniques and judicial decision-making — has been rather limited compared to other legal spheres. However, recent studies are gradually closing this gap.
In this Chapter (which will part of a forthcoming textbook-treatise on behavioral law and economics), we critically survey the behavioral analysis of public and international law, including studies of governmental institutions and rule-making, citizens’ judgments and choices, human rights (including issues in freedom of speech, the fight against terrorism, and affirmative action), and international law.
