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2017 Law and Biomedicine Colloquium – Stephanie Bair

January 11, 2017 @ 3:05 pm - 5:05 pm

3:05 – 5:05 p.m., S.J. Quinney College of Law, Room 5606
The Law and Biomedicine Colloquium brings together scholars, practitioners in our community, law students, and law faculty for seminar-style discussion of complex and controversial topics in the field. We are excited to be welcoming four distinguished scholars from other law schools in the region, as well as leaders in legal practice in law and the biosciences. Registered students at the College of Law will receive one hour of credit for participating in the colloquium; other interested participants are welcome to join us. Visit the Center web page to learn more about the Center for Law and Biomedical Sciences.

Speaker Sessions open to the whole University community (other sessions are held exclusively for students).

1 hour CLE.  Free and open to the public. For questions about this event contact Jackie (801) 587-0221.

*Visitors will need to check in at the information desk on level 1 or level 2 to receive access to level 5.

“Neuroplasticity and Dynamic Rationality: Implications for Advertising Law and Autonomy”

In 1998, Christine Jolls, Cass Sunstein, and Richard Thaler published “A Behavioral Approach to Law and Economics.” Their Article proposes a departure from the previously dominant classical law and economics approach to legal analysis. Building on classical law and economics’ rational actor construct, the authors rely on empirical insights about human behavior to introduce the concept of the cognitively and motivationally limited boundedly rational actor.

Over the past two decades, the behavioral law and economics approach, with its focus on the boundedly rational actor, has contributed needed realism to positive, prescriptive, and normative analyses of law. But to date, it has largely ignored an important fact, grounded in the neuroscientific concept of neuroplasticity. Because of neuroplasticity, rationality is not static, but a dynamic characteristic that can be molded over time by specific laws and policies.

By overlooking the dynamic nature of rationality, behavioral law and economics is failing to reach its full potential. This has serious consequences not only for legal analyses, but also for the prescriptions and policies that flow from them. In some cases, the overlooked consequences of dynamic rationality might even lead us to enact policies that undermine, rather than advance, the very policy goals we seek to achieve.

In this Article, I take the first step in remedying this oversight. Drawing on the insights of neuroscience, I explain why rationality is dynamic, and what this means for behavioral law and economics. Working from examples in advertising law, I show that the overlooked phenomenon of dynamic rationality has led to policies that undermine the goal of consumer autonomy the policies were originally meant to advance. I show that this oversight can be accounted for in much the same way that bounded rationality is currently handled—by incorporating relevant psychological insights into positive models of decision-making. Doing so should increase the prescriptive and normative power of behavioral law and economics going forward.

Stephanie Plamondon Bair is an associate professor of law at BYU Law School. She arrived at BYU Law from Stanford, where she was a fellow with Stanford’s Program in Neuroscience and Society. Prior to this, she spent time as a patent litigation attorney at Goodwin Procter in Boston and as a clerk for the Honorable Raymond C. Clevenger III on the Court of Appeals for the Federal Circuit in Washington, D.C.

Professor Bair’s research focuses on mind sciences, innovation, and the law. She is particularly interested in applying empirical work in psychology and neuroscience to current legal and policy challenges in intellectual property law, public health law, criminal law, and other areas. Her recent legal writing has focused on the psychological underpinnings of the patent incentive.

Before graduating from Harvard Law School, Professor Bair earned a Ph.D. in Neuroscience from the University of Utah and an undergraduate degree in Physics from the University of Prince Edward Island in her hometown of Charlottetown. Her legal writing has been published or is forthcoming in the Boston University Law Review and the Connecticut Law Review, and her science writing has appeared in Nature and the Journal of Comparative Psychology


2017 Colloquium Schedule

January 11, 2017 – Stephanie Bair, Associate Professor, Brigham Young University

January 18, 2017 – Dave Gessel, Executive Vice President, Utah Hospital Association

January 25, 2017 – Suzette Goucher, JD, RN, Director Risk Management, University of Utah Hospital & Clinics

February 1, 2017 – Dan Burk, Professor, University of California, Irvine

February 8, 2017 – L. Rex Sears, Maschoff Brennan

February 15, 2017 – Teneille Brown, Professor of Law and Adjunct Professor of Internal Medicine, University of Utah

February 22, 2017 – Katherine L. Watson, Associate Professor of Medical Education and Obstetrics and Gynecology, Northwestern University

March 1, 2017 – Liza Vertinsky, Assistant Professor, Emory University


January 11, 2017
3:05 pm - 5:05 pm
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S. J. Quinney College of Law
383 South University St
Salt Lake City, UT 84112 United States


College of Law
801-585-3440 | 801-585-3479