Few academic publications have had as much direct public influence on the law as the 2008 article by my NYU colleague Oren Bar-Gill and then Harvard Law Professor Elizabeth Warren. In “Making Credit Safer,” they seek to combine two strands of academic thought in support of one great cause—more regulation of financial markets. They start with the central claim of behavioral economics that sophisticated entrepreneurs are able to take advantage of the systematic foibles of ordinary people, by rigging their products in ways that work systematically to their own advantage. By plying ordinary individuals will carefully packaged payment contracts, firms can undercut the central postulate of rational choice economics that all voluntary transactions produce mutual gains for the parties. In its stead we get the wreckage of families and fortunes brought about by unscrupulous bankers in search of a buck. Warren and Bar-Gill repeatedly talk about the importance of empirical evidence. Her own work, however, is exceptionally shoddy, as Todd Zywicki has recently pointed out in the Wall Street Journal.
The second strand of their argument refers to the law of product liability in which they claim that government actors at all levels have intervened into markets to cure the information deficits in products that in an earlier age used to maim, if not kill, ordinary consumers. The exploding toaster is their key example of a product that needs government oversight. In their view, the key insight is that “sellers have no incentive to invest in making a safer product given consumers’ imperfect information.” That position, moreover, is barely tolerable if consumers know about their own ignorance because they are then in a position to take precautions to offset the lamentable neglect of product providers. Yet in those cases where consumers fail to perceive the risks, they get the worst of both worlds. Sellers can afford to be indifferent to product risk, which leads to many bad consequences for consumers in the absence of firm government regulation.