Avishalom Tor’s research while affiliated with University of Notre Dame and other places

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Publications (44)


The Innocence Effect
  • Article

August 2011

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168 Reads

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25 Citations

SSRN Electronic Journal

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Avishalom Tor

Nearly all felony convictions—about 95 percent—follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty is overstated. We provide varied empirical evidence for the hitherto neglected "innocence effect," revealing that innocents are significantly less likely to accept plea offers that appear attractive to similarly situated guilty defendants. The Article further explores the psychological causes of the innocence effect and examines its implications for plea bargaining. Positively, we identify the striking "cost of innocence," wherein innocents suffer harsher average sanctions than similarly situated guilty defendants. Yet our findings also show that the innocence effect directly causes an overrepresentation of the guilty among plea bargainers and an overrepresentation of the innocent among those who choose trial. In this way, the innocence effect beneficially reduces the rate of wrongful convictions—including accepted plea bargains—even when compared to a system that does not allow plea bargaining. Normatively, our analysis finds that both detractors and supporters of plea bargaining should reevaluate, if not completely reverse, their long-held positions to account for the causes and consequences of the innocence effect. The Article concludes by outlining two proposals for minimizing false convictions, better protecting the innocent, and improving the plea bargaining process altogether by accounting for the innocence effect.


Overcoming Impediments to Information Sharing

October 2010

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104 Reads

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34 Citations

SSRN Electronic Journal

When deciding whether to share information, firms consider their private welfare. Discrepancies between social and private welfare may lead firms excessively to share information to anti-competitive ends - in facilitating of cartels and other harmful horizontal practices - a problem both antitrust scholarship and case law have paid much attention to. On the other hand, legal scholars have paid far less attention to the opposite type of inefficiency in information sharing among competitors - namely, the problem of sub-optimal information sharing. This phenomenon can generate significant social costs and is of special importance in network industries because the maintenance of compatibility, a key to producing positive network effects, typically requires information sharing. Understanding the hitherto neglected impact of sub-optimal information sharing is important not only for many areas of antitrust law, but also for developing effective policies towards network industries and critical infrastructures more generally, as well as for improving those procedural rules that concern information exchange among litigating parties.This paper therefore advances the legal analysis of impediments to efficient information sharing in a number of significant ways: First, it shows that the strategic behavior of competitors may erect an economic barrier to information sharing that has not been previously addressed in the literature - the fear of degradation. This form of strategic behavior involves the strategic refusal to share information when the refusal inflicts a greater harm on one's rivals than on oneself, and thus generates a competitive advantage. Second, the paper reveals a hitherto unrecognized set of behavioral impediments to information sharing, wherein rivalry norms and managers' risk attitudes bias competitors' judgments of the prospects of information sharing and the status-quo bias and ambiguity aversion lead these decision makers to avoid such arrangements. Third, it integrates these economic and behavioral insights with the findings of the extant literature to create a new framework for predicting when private information sharing will be suboptimal. Finally, we suggest how the alignment of private information sharing with social optimality may be promoted, based on the framework developed here.


Expansion and Contraction in Monopolization Law
  • Article
  • Full-text available

May 2010

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67 Reads

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1 Citation

Antitrust Law Journal

This article introduces a special symposium issue of the Antitrust Law Journal based on a conference on monopolization. It argues that monopolization law has been experiencing simultaneous expansion and contraction processes that are not wholly contradictory but at least partly complementary. Specifically, the authors suggest that the contraction of monopolization law in the United States and the EU might serve to facilitate its expansion and increased importance worldwide, providing other antitrust regimes with more focused and effective tools to address the challenges involved in regulating dominant firms. Moreover, monopolization law's increased reach internationally also has made its refinement and rationalization all the more important for jurisdictions seeking to avoid the harmful chilling effects associated with excessive enforcement in this area. Finally, the contraction of monopolization law might also be motivated by external pressures, resulting from spillover effects. A better understanding and evaluation of these expansion and contraction trends is therefore likely to necessitate their joint rather than separate evaluation in future antitrust scholarship.

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The N-Effect: Beyond Probability Judgments

April 2010

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47 Reads

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25 Citations

Psychological Science

This article introduces the N-effect—the discovery that increasing the number of competitors (N) can decrease competitive motivation. Studies 1a and 1b found evidence that average test scores (e.g., SAT scores) fall as the average number of test takers at test-taking venues increases. Study 2 found that individuals trying to finish an easy quiz among the top 20% in terms of speed finished significantly faster if they believed they were competing in a pool of 10 rather than 100 other people. Study 3 showed that the N-effect is strong among individuals high in social-comparison orientation and weak among those low in social-comparison orientation. Study 4 directly linked the N-effect to social comparison, ruling out ratio bias as an explanation of our results and finding that social comparison becomes less important as N increases. Finally, Study 5 found that the N-effect is mediated by social comparison. Limitations, future directions, and implications are discussed.


Uniltaeral, Anticompetitive Acquisitions of Dominance or Monopoly Power

January 2010

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25 Reads

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4 Citations

Antitrust Law Journal

The prohibition of certain types of anticompetitive unilateral conduct by firms possessing a substantial degree of market power is a cornerstone of competition law regimes worldwide. Yet notwithstanding the social costs of monopoly modern legal regimes refrain from prohibiting it outright. Instead, competition laws prohibit monopolies or dominant firms from engaging in those types of anticompetitive conduct that amount to "monopolizing" or an "abuse of dominant position." Importantly, anticompetitive conduct can take place both on the road to monopoly and, later on, once substantial market power has been achieved. Legal regimes nevertheless tend either to ignore or pay only limited attention to the unilateral conduct of firms lacking substantial market power. This Article argues, however, that such conduct merits legal attention where it led or would lead if unstopped to the acquisition of substantial market power. Specifically, competition law regimes that fail to incorporate an appropriately-designed unilateral conduct liability in this area are unable to address some increasingly important classes of potentially harmful unilateral practices, such as those that concern cheap exclusion, multi-product (but not necessarily dominant) firms, network tipping effects, and more. This failure, moreover, may lead to distortions in other areas of unilateral conduct policy in these regimes that seek to compensate for the absence of any liability for the conduct of non-dominant firms. The analysis concludes by drawing together the lessons from the critical evaluation of the EU and the U.S. approaches for the appropriate design of unilateral conduct regimes worldwide.



Behavioral Antitrust: A New Approach to the Rule of Reason after Leegin

December 2009

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66 Reads

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17 Citations

SSRN Electronic Journal

The Supreme Court’s recent decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., which replaced the longstanding per-se rule against resale price maintenance (RPM) with a rule of reason approach, has resurrected the debate over RPM. Legal and economic proponents of this practice again point to its potential procompetitive benefits, while RPM detractors emphasize its possible anticompetitive consequences. Despite their disagreements regarding the overall RPM evaluation, however, scholars, the Court, and the limited empirical data appear near-unanimous in agreeing that such arrangements can either increase or decrease efficiency. Consequently, the RPM debate predominantly revolves around theoretical assertions regarding the likely frequency and significance of RPM's pro- versus anti-competitive manifestations. Importantly, however, all of these theories also assume – like traditional antitrust scholarship more generally – that manufacturers are strictly rational actors, who employ only profit-maximizing arrangements. In contrast, a behavioral analysis suggests that real-world, boundedly-rational manufacturers are prone to overuse RPM, at times harming consumers. The available evidence reveals this excessive reliance on RPM slowly diminishes over time, as biased manufacturers are taught or disciplined by the market. The slow demise of this practice, however, may entail significant efficiency losses over many years. Yet because RPM will sometimes be procompetitive, Leegin's rejection of its per-se condemnation in favor of a rule of reason analysis is still justified. The present analysis therefore not only offers a novel account of resale price maintenance, but also shows how boundedly rational RPM challenges the various post-Leegin approaches developed by some courts, enforcement agencies, and scholars on both sides of the RPM debate. We close by outlining our alternative, behaviorally informed, structured rule of reason inquiry for this restraint.


The N-Effect: Beyond Winning Probabilities

November 2009

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23 Reads

The N-effect reveals that the motivation to compete increases as the number of competitors decreases, controlling for overall expected payoffs (Garcia and Tor, 2009). In their thoughtful commentary, Mukherjee and Hogarth (in press) astutely reason that, given ability differences in the population, the greater sampling error (SE) in small-N settings increases weaker competitors' individual probability of winning, potentially causing a motivation gain on their part. The present commentary explains why SE is an unlikely theoretical account for Garcia and Tor's (2009) N-effect findings and experimentally demonstrates the persistence of the N-effect where an SE effect should not appear.


The Price of Equality: Suboptimal Resource Allocations Across Social Categories

July 2009

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42 Reads

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11 Citations

SSRN Electronic Journal

This paper explores the influence of social categories on the perceived trade-off between relatively bad but equal distribution of resources between two parties and profit maximizing, yet asymmetric payoffs. Study 1 and 2 showed that people prefer to maximize profits when interacting within their social category, but chose suboptimal individual and joint profits when interacting across social categories. Study 3 demonstrated that outside observers, who were not members of the focal social categories, also were less likely to maximize profits when resources were distributed across social category lines. Study 4 showed that the transaction utility of maximizing profits required greater compensation when resources were distributed across, in contrast to within social categories. We discuss the ethical implications of these decision making biases in the context of organizations.


The N-Effect More Competitors, Less Competition

July 2009

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257 Reads

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155 Citations

Psychological Science

This article introduces the N-effect-the discovery that increasing the number of competitors (N) can decrease competitive motivation. Studies 1a and 1b found evidence that average test scores (e.g., SAT scores) fall as the average number of test takers at test-taking venues increases. Study 2 found that individuals trying to finish an easy quiz among the top 20% in terms of speed finished significantly faster if they believed they were competing in a pool of 10 rather than 100 other people. Study 3 showed that the N-effect is strong among individuals high in social-comparison orientation and weak among those low in social-comparison orientation. Study 4 directly linked the N-effect to social comparison, ruling out ratio bias as an explanation of our results and finding that social comparison becomes less important as N increases. Finally, Study 5 found that the N-effect is mediated by social comparison. Limitations, future directions, and implications are discussed.


Citations (32)


... In social circumstances, however, rewards and punishments are often linked with performances involving social comparison, for instance, individuals are rewarded when their performance surpasses that of others and punished when their performance falls short (competitive circumstances; e.g. Garcia et al. 2013, Tor andGarcia 2023). It remains unclear whether the effects of social comparison-related outcomes on face perception differ between competitive and noncompetitive circumstances. ...

Reference:

Competition modulates the effects of social comparison on ERP responses during face processing
The neuroscience of social comparison and competition
  • Citing Article
  • June 2023

Cognitive Affective & Behavioral Neuroscience

... This involves exclusion from knowledge about job-related opportunities, therefore reproducing and strengthening gender inequality within the organisation (McDonald et al., 2009;Burton, 2019). It is also said that elements of competition and power-related aspects derived from the organisational structure are further adopted and transferred into social practices such as friendships and alliances within such an informal network (Garcia & Tor, 2023). Considering the trends of the old boy's network, it became clear for the current study therefore to probe the issue of whether powerful men retained additional organisational elements, and whether or not additional issues transpired as a result of the marginalising network. ...

Social Comparison and Competition: General Frameworks, Focused Models, and Emerging Phenomena
  • Citing Chapter
  • April 2023

... As Kahneman (Singal, 2013) expressed it, they can achieve 'medium-sized gains by nanosized investments. ' However, even if true (see Tor and Klick, 2022;Thunströ m, 2019;Thunströ m et al., 2018 for arguments that the costs of such interventions are higher than has been recognized), the medium sized gains of such policies are typically dwarfed by the scale of the problems they are intended to address. Moreover, recent evidence suggests that the gains from i-frame policies are not, in fact 'medium, ' but are smaller than most academics believed ; and that the effects of i-frame interventions appear larger when they are defined narrowly and on a shorter time frame (Rizzo and Whitman, 2019;Saccardo et al., 2022). ...

When Should Governments Invest More in Nudging? Revisiting Benartzi et al. (2017)
  • Citing Article
  • December 2022

Review of Law & Economics

... Competition emerges spontaneously in many social situations. People, even involuntarily, frequently compare themselves with others (Festinger, 1954;Garcia et al., 2024). These situations can be approached differently according to one's competitive orientation. ...

The Oxford Handbook of the Psychology of Competition
  • Citing Article
  • October 2021

... Recent evidence shows some forms of individual behaviour change, such as nudging, are limited in scale . A nudge for good, and in the right direction Sunstein, 2008, 2021), once considered to be cost-effective (Benartzi et al., 2017;Tor & Klick, 2022) and attractive to organisations globally (Insights & Policy, 2017;Ball & Head, 2021), is now proving to under-deliver on its goals. Some relate these shortcomings to the design of these interventions (Hertwig, 2017;Mongin & Cozic, 2018;Tor, 2020;Banerjee & John, 2021). ...

When Should Governments Invest More in Nudging? Revisiting Benartzi et al. (2017)
  • Citing Article
  • January 2022

SSRN Electronic Journal

... sent Bias). Da die Adressaten in diesem Moment die E-Mail lesen, ist davon auszugehen, dass die Opportunitätskosten für eine Terminvereinbarung relativ gering sind, was die tatsächliche Umsetzung des Vorhabens begünstigt (22). Ein Button in der E-Mail ermöglicht eine direkte Terminvereinbarung, was die Barriere für eine Teilnahme senken kann. ...

The Target Opportunity Costs of Successful Nudges
  • Citing Chapter
  • January 2021

... This research suggests that between-team dyadic competition, where one team strives to outperform another team , can be the result of multiple factors. For example, it could be induced by dyadic outcome interdependence (e.g., two teams competing for economic incentives or scarce resources), other socio-relational factors such as dyadic performance history (Kilduff et al., 2016), emotional arousal specific to a pair of teams (Ku et al., 2005), or a combination of these factors (Garcia et al., 2013(Garcia et al., , 2019. Accordingly, in providing an effective manipulation, we induced competitive ties by providing Team Reds with information about their between-team dyadic history with Teams Blue or Team Green as well as dyadically structured incentives to outperform specific target teams. ...

Social Comparison Before, During, and After the Competition
  • Citing Chapter
  • January 2020

... However, at least one important issue has emerged from the default nudge approach: people may mistakenly express preferences that differ from their own when certain options are set as defaults (Wilkinson, 2013). Tor (2020) pointed out that nudges may lead people to make choices inconsistent with their preferences. Indeed, some people mistakenly express their preferences under a choice architecture in which "apply" is the default choice (Apply Default architecture). ...

Nudges that should fail?
  • Citing Article
  • March 2019

Behavioural Public Policy