Erin A. O'Hara O'Connor

A Cognitive Theory of Trust

Interpersonal trust is currently receiving widespread attention in the academy. Many legal scholars incorrectly assume that interpersonal trust is an unmitigated good (or bad) and that legal policy should therefore be crafted to maximize (or minimize) trust. A more nuanced understanding of trust indicates instead that it should be promoted or discouraged, depending on the context. Such an understanding needs to reflect the fact that trust and distrust can, and often do, coexist. In most relationships, the parties trust one another with regard to some matters and yet distrust one another with regard to other matters. More specifically, developing a relationship with somebody often involves acquiring an overall residual sense of how trustworthy the person is, as well as a specific sense of the persons trustworthiness in particular contexts. Our paper begins to develop a cognitive theory of trust. Our cognitive lens suggests specific types of relationships and contexts in which people are systematically inclined to trust one another nonoptimally. First, some accurate trust assessments may be socially nonoptimal. Consider a group whose members decide to forego costly assessments of strangers, confining their dealings to other group members. Or parties engaged in socially undesirable activities whose high trust for one another permits them to effectuate successful criminal conspiracies. In these cases, social gains can be realized by enacting regulatory measures that provide incentives for either trust-enhancing or trust-decreasing behaviors. Second, some relationships are plagued by mistaken initial trust assessments in contexts where accurate updating of these assessments is either precluded or impaired. In such contexts the law should intervene to either promote more accurate trust levels or to mitigate the costs of the mistaken assessments. We identify two relationships where, if left unregulated, one of the individuals will likely inaccurately assess the trustworthiness of the other. In the corporate management context, directors are inclined to overtrust officers, and we explore possible mechanisms for promoting specific types of distrust on the part of directors without excessively eroding the residual trust in the officer-director relationship. In doctor-patient relationships, patients similarly overtrust doctors albeit for different reasons. Because patients often benefit from overtrusting their doctors, however, promoting more accurate patient trust assessments likely would prove costly. Health care law should (and does) instead focus on promoting doctor trustworthiness and compensating patients who suffer harm from misplacing their trust.

Economics, Behavioral Biology, and Law

This article compares the relevance to law of two unexpectedly similar fields: economics and behavioral biology. It first examines the assumptions, core concepts, methodological tenets, and emphases of the two fields. It then compares the interdisciplinary fields of law and economics, on one hand, with law and behavioral biology, on the other—highlighting not only important similarities but also important differences. The article subsequently explores ways that biological perspectives on human behavior may, among other things, improve economic models and the behavioral insights they generate. The article concludes that although there are important differences between the two fields, the overlaps between economics and biology warrant even greater congress between these two disciplines, and expanded exchange between the legal thinkers interested in each of them.

Mistake of Federal Criminal Law: A Study of Coalitions and Costly Information

This article analyzes Supreme Court and other federal court cases, to explain the seemingly disparate incorporation of mistake of law excuses into federal criminal statutes. Most of the cases can be explained from an information cost perspective. If an easily separable subset of the regulated population cannot be induced to learn their legal obligations given credibly low prior probabilities and high information costs, they are excused from criminal liability. Moreover, when criminal statutes are vulnerable to constituent protest, courts require that enforcers increase awareness of the law through information subsidies rather than convicting the ignorant. At least with mistake of law, the federal courts most often interpret federal statutes to enhance both the value and durability of legislative bargains.

Preemption and Choice-of-Law Coordination

The scope of federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that the courts purport to interpret Congressional intent when often Congress never considered the particular preemption question at issue. This article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where a federal law can serve a coordinating function but Congressional intent regarding preemption is unclear, we propose that courts consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such horizontal coordination, Congress often has little need to usurp the states role as laboratories for experimenting with potentially diverse substantive laws. Our approach would help to promote a “healthy federalism” in that it encourages courts to preserve the benefits of local and state sovereignty while simultaneously enabling federal statutes to coordinate US law where necessary. We apply our proposed approach to several areas where the courts have struggled with their poorly constructed preemption analyses to show how our approach might improve preemption decisions. Although our approach provides a conceptually obvious, and therefore elegant, solution to many preemption problems, to date it has been entirely unexplored. Available at SSRN: http://ssrn.com/abstract=1926199 or http://dx.doi.org/10.2139/ssrn.1926199