The Legal Analyst: A Toolkit for Thinking about the Law

By Ward Farnsworth | Go to book overview

26 Self-Serving Bias, with a Note
on Attribution Error

When you are better off if something is true, you are more likely to believe it. That is a capsule description of self-serving bias. It is common in everyday life. People habitually credit themselves for their successes and blame others for their failures. Most drivers consider themselves above average in their level of skill behind the wheel, while almost nobody thinks they are below average in their ability to get along with others.87 We see it in the frequent belief that what is fair or right is whatever serves one’s own interests. The phrase itself—self-serving bias—is perhaps unfortunate; people tend not be served well by the bias at all (though we will consider some possible exceptions later in the chapter). They would be better off if their beliefs were true, but they aren’t better off believing they are true when they aren’t. Perhaps a better term for it, where it applies, is optimism bias, though not every case of one is a case of the other.

These sorts of biases are especially important for lawyers to understand because lawyers are supposed to help clients avoid them. People tend to be overly optimistic about a very long list of things: their likelihood of being sued, for example, or their likelihood of being caught when they break the law, or their likelihood of being in accidents, which in turn affects how much insurance they buy and how many precautions they take.88 This last point may be a cause for helpful lawyerly advice, but it also is a standard rationale for regulating risks to safety rather than letting the market take care of them; for the people making decisions in the market will be unlikely to perceive risks accurately if they are in the grip of undue optimism.89 The inaccuracies can run both ways; sometimes people make the opposite mistake of exaggerating remote risks because they are salient, or “available” in the mind’s eye, such as the chance of being attacked by a shark. While that type of error mostly is a story for another time,90 it does suggest a possible antidote to the problem we are considering here—the problem of too much optimism. The bias is quite stubborn; simply warning people about it or giving them better information about odds doesn’t seem to help.91 But it has been suggested that optimism bias might be countered by telling people about possible bad outcomes in ways that are easy to visualize, for people tend to consider

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The Legal Analyst: A Toolkit for Thinking about the Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Acknowledgments xi
  • Part I - Incentives 1
  • 1 - Ex Ante and Ex Post 3
  • 2 - The Idea of Efficiency 13
  • 3 - Thinking at the Margin 24
  • 4 - The Single Owner 37
  • 5 - The Least Cost Avoider 47
  • 6 - Administrative Cost 57
  • 7 - Rents 66
  • 8 - The Coase Theorem 75
  • Part II - Trust, Cooperation, and Other Problems for Multiple Players 85
  • 9 - Agency with Eric Posner 87
  • 10 - The Prisoner's Dilemma 100
  • 11 - Public Goods 109
  • 12 - The Stag Hunt 117
  • 13 - Chicken 126
  • 14 - Cascades 136
  • 15 - Voting Paradoxes 144
  • 16 - Suppressed Markets with Saul Levmore 152
  • Part III - Jurisprudence 161
  • 17 - Rules and Standards 163
  • 18 - Slippery Slopes with Eugene Volokh 172
  • 19 - Acoustic Separation 182
  • 20 - Property Rules and Liability Rules 188
  • 21 - Baselines 198
  • Part IV - Psychology 207
  • 22 - Willingness to Pay and Willingness to Accept- The Endowment Effect and Kindred Ideas 209
  • 23 - Hindsight Bias 218
  • 24 - Framing Effects 224
  • 25 - Anchoring 230
  • 26 - Self-Serving Bias, with a Note on Attribution Error 237
  • Part V - Problems of Proof 247
  • 27 - Acoustic Separation 249
  • 28 - Standards of Proof 257
  • 29 - The Product Rule 273
  • 30 - The Base Rate 281
  • 31 - Value and Markets 294
  • Notes 305
  • Author Index 329
  • Subject Index 335
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