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Journal of Law and Policy

First Page

473

Abstract

Various disciplines are increasingly discovering the power of learning. However, the potential and the complexities of learning theory in decision-making contexts have so far been neglected by scholarship in law and economics as well as behavioral law and economics: either learning is uncritically assumed to occur and to mitigate biases, or it is generally claimed that learning is insufficient to overcome cognitive biases. Even where learning is considered, the scope is merely limited to individual or social learning. Learning by and across institutions, a crucial factor for effective regulation, is largely ignored. That type of learning should be paramount, however, as an increasing number of institutions at the international and domestic level are adopting behavioral regulation, which prides itself on facilitating “smart decisions.” This Article argues that legal analysis should tap the precious resource of learning to facilitate lasting and beneficial real-world effects. It draws on social and cognitive psychology, behavioral game theory, and organizational science to show that there are vast effectiveness and efficiency gains to be made from an integration of learning theory into regulatory and private law contexts. Interdisciplinary learning theory suggests that such gains can be made through learning by doing, observational learning, as well as recursive and generative learning. These learning methods can be used at the individual, social, team, and institutional level, which is demonstrated using case studies from international law, as well as American and European Union law. As an overarching category subsuming these forms of learning, the Article develops the concept of systemic learning. It suggests that the law should introduce systemic learning patterns in public and private law contexts through feedback loops and institutionalized systemic learning facilities. Finally, it proposes the institutionalization of an Agency for Systemic Learning Management. Having ignored learning theory in the past, future behavioral regulation should put learning efforts center stage as it unfolds on a global scale.

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