Behavioral Tradeoffs

Yuval Feldman and I have posted on ssrn our forthcoming article, Behavioral Tradeoffs: Beyond the Land of Nudges Spans the World of Law and Psychology. The title is self-explanatory: we believe that much of the nudging writing of behavioral law and economics has been narrowly focused and has skewed the discussion about the potential and limits of applying psychology insights to policy. We develop an original taxonomy that we hope will be useful in thinking about various tensions within the behavioral/psychology literature and its relevance to law: Outcome vs. Process; Invisible vs. Expressive Law; Trusting vs. Monitoring; and Universal vs. Targeted.The piece will be published as part of a book titled What Can EU Law Learn from Behavioural Sciences? 2015. Here is the link to the full paper and here below is the abstract:

The purpose of this chapter is to illuminate the breadth and potential of behaviorally informed legal policy. We argue that currently policy approaches that encompass behavioral insights often overlook a fuller picture of psychology. A narrow approach limits the successful integration of behavioural insights into the legal system. This chapter suggests ways to move toward harmonization between the various law and psychology schools of thought. The need for such harmonization stems not only from the independent development of each strand, absent, for the most part, coherent integration and exchange, but also because this lack of awareness of the insights developed in related areas of law and psychology may lead to very limited and sometimes inadvertent policy recommendations. To meet this challenge, the paper suggests the need to balance some of the tensions which emerge from different aspects of psychology into a proposed framework of behavioural trade-offs. In particular we will focus in this chapter on taxonomy with four main trade-offs. Outcome vs. Process; Invisible vs. Expressive Law; Trusting vs. Monitoring; and Universal vs. Targeted Nudging. By demonstrating how actual policy concerns could be better understood by accounting for these trade-offs, the chapter will contribute to a more informed and nuanced path of EU behavioural-based legal policy.