THE LEGAL REGULATION OF SELF-SERVING BIAS
Boston University School of Law Working Paper 02-07
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This paper considers two questions about the role of self-serving biases
in legal conflict: when are they a problem worth worrying about, and what
can the law do to ameliorate them? With respect to the first question,
the paper argues that not all self-serving biases are of equal concern.
We should distinguish between self-serving predictions, which have the
potential to create significant inefficiencies, and self-serving judgments
of fairness, which have a more complicated normative standing and in some
instances may not be problematic at all. Second, once a bias is found
objectionable there are a number of possible strategies for dealing with
it; the paper proposes a distinction between personal and structural strategies.
Personal strategies are attempts to take people likely to be in the throes
of self-serving biases and "debias" them. Structural strategies
are attempts to put distance between biased parties and decisions their
biases might affect. There are practical strategies that fit each of those
descriptions, and others that fall between them; the paper suggests that
structural strategies tend to be preferable to personal strategies, but
also more expensive, and that the law may already be taking most steps
that would be optimal to reduce disputants' problematic self-serving biases
and their impact.
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Ward Farnsworth Contact Information
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
Presentation and Publication Information:
Published in 69 University of Chicago Law Review 211 (2002).
Social Science Research Network: http://ssrn.com/abstract_id=314561
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