Behavioral Law and Economics: Überlegungen zu den Konsequenzen moderner Rationalitätskonzepte für die Gestaltung informationellen Kapitalmarktrechts

Developed capital markets require companies to publish all material information. But securities regulation in both the US and Germany remains vague when it comes to specifying informational duties, because their determination is very difficult. As a consequence, courts have to deal with this problem, using economic reasoning. First, the German so-called 'wirtschaftliche Betrachtungsweise' is compared to the law-and-economics oriented method which US-judges are influenced by. Although both methods comprise economic considerations, several differences can be found. Next, a behavioral law and economic analysis of the fraud-on-the-market theory, a doctrine established by US courts for security fraud cases, shows that behavioral economics should be taken into account in order to provide for better court rulings. Although the reception of law and economics in Germany is rather difficult, German securities regulation could benefit from US court experiences with simultaneous consideration of behavioral economic implications.