University of Maryland Francis King Carey School of Law
Pepperdine Dispute Resolution Law Journal, Vol. 10, 2009
U of Maryland Legal Studies Research Paper No. 2009-4
In the good old days legal bargaining scholarship was based mostly on negotiator war stories exuberantly told. The social-scientific study of the subject did not begin in earnest until the nineteen-seventies. Since then, however, the literature of storytelling has gone into a pronounced eclipse and social-scientific study is now the principal scholarly game in town. This article questions the wisdom of this shift, almost seismic in its proportions, and argues that it is too soon to jump on the social science bandwagon. Discussion focuses on the uses made of the Prospect Theory of Daniel Kahneman and Amos Tversky and the Theory’s central concept of Anchoring. Anchoring is the most thoroughly analyzed of the Prospect Theory concepts and difficulties encountered in incorporating it into legal bargaining theory will recur many times over in working with other parts of the Prospect Theory framework. It is an exemplary test case.