Yuval Feldman

At the core of the economic analysis of law lies the concept of expected sanctions, which are calculated by multiplying the severity of the sanction that is applied to wrongdoers by the probability that it will be applied. This probability is the product of several sequential probabilities involving the different actors responsible for sanctioning wrongdoers (e.g., police, prosecutors, judges, jurors, etc.). Generally , legal economists treat different legal probabilities as fungible, simply multiplying them much like any other sequential probabilistic situation. This Article challenges this assumption, demonstrating that people perceive and are affected by different types of legal probabilities in distinct ways. More specifically, it shows that uncertainty associated with the substance of the law and uncertainty associated with imperfect enforcement should not be treated equivalently. To demonstrate this point, this Article presents a series of between-subjects experimental surveys that measure and compare participants' attitudes toward compliance in conditions of uncertainty. Study participants—several hundred students from Israel and the United States—answered questions in the context of one of several variations on the same hypothetical scenario. While the expected sanction was the same in each variation, the source of uncertainty differed. These studies confirmed that people are less likely to comply when uncertainty stems from the imprecision of law's substance than when uncertainty stems from the imperfect enforcement of clear law.

This chapter discusses the main insights of the economic analysis of employment law. While in other legal fields, one no longer needs to explain the explicative and normative contributions of the economic analysis of law, lawyers in employment law are still somewhat suspicious of such concepts as efficiency and competition. Simplistically put, and in our opinion also erroneously, some see economic analysis as a pro-employer approach that attempts to implant free-market arguments into the field of employment law. This chapter points to the complex meaning of the concept of efficiency in economic analysis in general, and in employment law in particular. This complexity perhaps reduces some of the initial charm of economic analysis as an analytical tool that might lead to a single precise answer. Yet the complexity of economic analysis, especially when one includes in it various efficiency measures as well as discussions of the various market failures, allows a richer and more enlightening economic analysis of the main issues of employment law. This chapter illustrates these insights through analyzing examples taken from employment law, labor law and employment discrimination law.

This article examines whether the nature of information protected by trade secret law affects departing employees' normative judgments of obedience to trade secret law. This examination assesses two main dimensions: tangi-bility (whether the employee downloaded the confidential information) and authorship (whether the employee developed the confidential information by himself or herself). The data was collected from a nonrandom multi-sourced sample of 260 high-tech employees in Silicon Valley. Tangibility affected almost all the factors that were measured (such as the perceived consensus and participants' own intention to share information), while authorship affected only participants' moral perceptions. Further analysis revealed that the expected social approval of a new employer was the most important mediator of the effect of tangibility on the intention to share trade secrets.

In designing a recycling policy, the regulator must choose among multiple instruments. Our study seeks to address the linkages between the choice of regulatory instruments and institutional frameworks, people's intrinsic motivation , and various attitudinal measures. We examined the behavioral repercussions of several instruments that are used widely in recycling regulation, using an experimental survey on a representative sample of the Israeli population (N = 1,800 participants). Our findings suggest that the design of recycling policies should be sensitive to the framing effects of varied regulatory instruments and to the interplay between intrinsic and extrinsic motivation on the desirability and efficacy of the law. In particular, we point out the potential regulatory advantage of using deposit schemes over other instruments and of using private organizations as regulatory agents. Drawing on these findings, we discuss the potential value of using differentiated regulatory policies to provide incentives for recycling in societies characterized by broad heteroge-neity in levels of intrinsic motivation. Recycl ing has long been considered a key component of the regulatory effort to curtail excessive waste production. Despite the relative simplicity of the act of recycling, the design of optimal recycling programs has proven to be a challenge. In designing a recycling policy, the regulator must choose among diverse instruments , ranging from command and control measures to economic instruments (taxes, deposits) and voluntary programs. Drawing on the insights of behavioral economics and institutional analysis, we use an experimental survey setting to examine critically the dilemma of instrument choice. Our empirical analysis is based on For financial support, we thank the Israel National Science Foundation. For statistical consulting, we thank Tammy Shterental and Amir Falk. We would like to thank Jacob Nussim, Tsilly Dagan, Barak Medina, as well as the editors and anonymous referees, for helpful comments. Please address correspondence to Yuval Feldman,

This chapter presents a unique perspective on whistleblowing, combining behavioral and organizational perspectives of employee motivation to engage in social enforcement. The chapter is based on a series of experimental studies conducted by the collaborators. In our studies, we analyze the interactions among several types of factors. First, we describe cultural differences and the ways a country " s attitude and history affect decisions to blow the whistle. Second, we systemically show complex motivations in the decision to report misconduct, including both intrinsic and extrinsic factors. Third, our experiments provide unique insights about the design of the law and the various incentives it can offer to support social enforcement. The studies improve our understanding of the costs and benefits of different regulatory systems and the inadvertent counterproductive effects of certain legal incentives. Based on these studies, the chapter explores the comparative advantages of various incentive structures and aim for a better fit between regulatory design and organizational and individual motivation, not only in compliance as many of the other chapters in this volume suggest but also in reporting the incompliance of others.

The morality of killing in war, which has been the subject of debate among philosophers and legal scholars, focuses on two main approaches: the " traditional " and the " revisionist. " The traditional approach argues for symmetry: soldiers of both sides are liable to be killed, whether or not the war they fight is just; civilians are immune from being harmed whether or not they are responsible for the evil against which the just side fights. Recently this approach has been challenged by a revisionist viewpoint, which derives the morality of killing in war from facts concerning the responsibility of individuals for wrongful threats. Killing soldiers, who fight a just war, is morally impermissible, whereas in certain cases killing civilians who are involved in an unjust aggression is permissible. The present study uses an experimental survey to examine whether moral attitudes toward targeting individuals in war are shaped by the factors underlying this debate: the cause of the war, the status of the targeted individuals as soldiers or civilians, and their involvement in the war effort. Respondents comprised a representative sample of the Jewish population in Israel. Our findings reveal a complex interplay between the factors, demonstrating the relevance of each factor to moral judgments. Notably, participants did not consider decisions on the battlefield to be independent of the justification of the war, a result which is consistent with the revisionist approach. We discuss the potential consequences of our findings on the understanding of commonsense morality and on the law. We also suggest that concepts derived from the social-psychological literature concerning moral self-regulation may help explain some of our findings.

Copyright (c) 2011 Washington University Washington University Journal of Law & Policy. ... For example, the insurance industry lobby objects to commodifying life and gambling on death through ... and math and a decrease in time spent on science and social studies," as evidence ...

The papers presented in this issue are based on the conference Social Norms, Self-Interest and Legal Compliance which took place in Bar-Ilan University and Hebrew University in May 2007. The conference, organized by Yuval Feldman and Alon Harel, was supported by ...

... Correspondence: Yuval Feldman ... For their insightful comments and suggestions, I thank Hadar Aviram, Adam Badawi, Rena Bogoch, Meir Dan-Cohen, Ted Eisenberg, Assaf Hamdani, Valerie Hans, Gilad Hirschberger, Alan Hyde, Miri Gur-Arie, Mark Lemley, Peter Menell, Oren ...

... Yuval Feldman* ... I want to thank Professors Robert D. Cooter, Melvin Eisenberg, Miri Gur-Arie, Robert J. MacCoun, Robert Merges, AnnaLee Saxenian, David Teece, Philip Tetlock, Tim Urdan, and the anonymous reviewers of this paper for their help. ...

... I would also like to thank Ms. Martha Kelley and Ms. Gracie W. Waldrup for editing the manuscript. ... 27 For an historical review of this development, see Catherine L. Fisk, Removing the Fue/of Interest' from the Tire of Genius': Law and the Employee Inventor, 1830-1930, 65 U. CHI ...

ABSTRACT Social norms play a central role in explaining why people obey the law. Models featuring the expressive function of the law focus on the norm-mediated effect of law on behavior - that is, law influences existing social norms, which in turn influence behavior. In this Article, we focus on the question of how law influences social norms. We seek to understand the characteristics of law that influence people's opinions about the social acceptability of the behavior law seeks to regulate. To address these questions, we examined the practice of sharing digital files of copyrighted material ("file sharing"). We conducted an experiment to identify the characteristics of copyright law that influence perceptions of the consensus about unlawful file sharing. Results suggest that both formal and informal sanctions associated with copyright regulations influence perceptions of file sharing behavior. At the same time, law did not influence perceptions of file sharing behavior in the absence of any sanctions, and making salient the moral justifications for refraining from unlawful file sharing also did not influence perceptions. We discuss the implications of our study both for the theoretical debate about the expressive function of the law, and for the policy debate regarding curbing unlawful file sharing.

The focus of this book is on how governments may effectively use recent advances in the understanding of human behavior to guide their efforts to modify people’s behavior. To date, the insights of behavioral ethics that have completely revolutionized the business and management fields have yet to be applied in legal as well as governance research, especially in the context of legal enforcement. The growing recognition that misconduct can be facilitated by structural issues and is not just the product of a few “bad apples” has important implications for the design and fine-tuning of enforcement mechanisms.  States need to modify their regulatory roles and functions based on the understanding that discrimination does not just stem from certain employers who hate minorities, that corruption is not just about greedy individuals, or that trade secrets are not just divulged for mercenary motives.
This book argues that the good-people rationale—the idea that ordinary people could engage in all types of wrongdoing without being aware of the full meaning of their behavior—greatly complicates the regulatory challenge of states. Because of various psychological and social mechanisms that prevent people from recognizing their wrongdoing and encourage them to feel as if they are far more moral, unbiased, and law abiding than they actually are, individuals today are less likely to react to legal signals, which they view as directed to other, “bad” people. Similar self-serving mechanisms affecting their perception of social norms and fairness cause people to have very inaccurate views of the normative status of their behavior. Moreover, a great deal of uncertainty surrounds the good-people rationale. We do not yet know how “good” the good people are in terms of their awareness and ability to control their conduct. Nor can we quantify the ratio of good to bad people in society. Although we appreciate the need to address the misconduct of good and bad people differently, we do not know the costs of using the “wrong” intervention techniques to deal with various types of bad behavior. Bringing about the needed shifts in regulatory design first requires a shift in the behavioral analysis of law.