Heterogeneity and law: toward a cognitive legal theory

Since the 1990s, Sunstein, Jolls, and Thaler have questioned the perfect rationality assumption in law and economics (L&E) and introduced a behavioral approach. But Gregory Mitchell has criticized behavioral law and economics (BL&E). He argues that much of the scholarship within the field describes psychological research as if it provides general laws of thought and behavior rather than insights conditional on the setting, on the characteristics of subjects, and on the specificity of the task in hand. Human heterogeneity is not adequately included in models developed under behavioral assumptions of this kind. This paper argues that Mitchell’s work contributes to develop a cognitive approach to Law closer to the cognitive theory of institutions and to the Original Institutional Economics (OIE). Mitchell’s contextualist approach seeks to identify the specific conditions under which irrational behavior occurs and to understand when and how it can be remedied.