Following the success of behavioral economics, behavioral law and economics has recently generated a great deal of new analysis of the legal system and now promises to become a field of its own (Jolls, Sunstein, & Thaler, 1998; Langevoort, 1998; Sunstein, 2000). The starting point here is that a great deal of empirical research requires qualifications of rational choice models (Bazerman, Messick, Tenbrunsel, & Wade-Bensoni, 1997; Conlisk, 1996; Thaler, 1994b). Those models are often wrong in the simple sense that they yield inaccurate predictions. Cognitive errors and motivational distortions may press behavior far from the anticipated directions; normative accounts of rational choice should not be confused with descriptive accounts (Tversky, 1996). But it does not follow that people's behavior is unpredictable, systematically irrational, random, rule-free, or elusive to social scientists.

On the contrary, the qualifications can be described, used, and sometimes even modeled. Those qualifications, and the resulting understandings of decision and choice (Kahneman & Tversky 1979; Loomes & Sugden, 1982), are playing a large and increasing role in many fields within economics and law. A large question is how analysis of the legal system might be altered if people are understood to be quasi-rational agents displaying bounded willpower, bounded self-interest, and bounded rationality (see Jolls et al., 1998; Sunstein, 1999).

Much behavioral work suggests that preferences and values are sometimes constructed rather than elicited by social situations (Slovic, 1995). “[O]bserved preferences are not simply read off some master list; they are actually constructed during the elicitation process. … Different elicitation procedures highlight different aspects of options and suggest alternative heuristics, which give rise to inconsistent responses” (Tversky, 1996, p. 186).