Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?
Document Type: Working Paper
Abstract
Once upon a time, “scholarship” about legal bargaining consisted of negotiator war stories colorfully and exuberantly told. Social-scientific study of the subject, at least in law schools, did not begin in earnest until the nineteen-seventies. The literature of storytelling and anecdote has not disappeared but it now has gone into a pronounced eclipse, so that often it appears that social-scientific study of legal bargaining is the only scholarly game in town. In this article I question the wisdom of this shift, almost seismic in its proportions, and suggest that it is too soon to jump on the social science bandwagon. I limit discussion to the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the Theory’s central concept of "anchoring and adjustment.” Anchoring is perhaps the most thoroughly analyzed and empirically documented of all the Prospect Theory concepts and any difficulties encountered in incorporating it into legal bargaining theory will recur many times over in working with other parts of the Prospect Theory framework.
Keywords:
bargaining theory, negotiation, dispute resolution, prospect theory, behavioral economics, empirical legal studiesDiscipline(s)
Dispute Resolution and Arbitration | Litigation
Recommended Citation
Condlin, Robert J., "Legal Bargaining Theory's New "Prospecting" Agenda: It May Be Social Science, But Is It News?" (2009). All Faculty Publications. Paper 663.
http://digitalcommons.law.umaryland.edu/fac_pubs/663
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