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Government Regulation of Irrationality: Moral and Cognitive Hazards


Jonathan Klick


University of Pennsylvania Law School; Erasmus School of Law; PERC - Property and Environment Research Center

Gregory Mitchell


University of Virginia School of Law


Minnesota Law Review, Vol. 90, p. 1620, 2006
FSU College of Law, Law and Economics Research Paper No. 05-16
FSU College of Law, Public Law Reserch Paper No. 160

Abstract:     
Behavioral law and economics scholars who advance paternalistic policy proposals typically employ static models of decision-making behavior, despite the dynamic effects of paternalistic policies. In this article, we consider how paternalistic policies fare under a dynamic account of decision-making that incorporates learning and motivation effects. This approach brings out two important limitations on the efficiency effects of paternalistic regulations. First, if preferences and biases are endogenous to institutional forces, paternalistic government regulations may perpetuate and even magnify a given bias and cause other adverse psychological effects. Second, for some biases, it will be more efficient to invest resources in debiasing than to change legal rights and remedies or, in some cases, to do nothing in light of the natural variation in irrational propensities. We propose dynamic models for determining ex ante and ex post when accommodation of bias will be second-best efficient. These models direct decision-makers to consider (1) the efficiency cost of the bias; (2) the extent to which accommodation worsens the bias or, alternatively, the extent to which non-accommodation improves the bias or has other benefits; and (3) the potential for education or other mechanisms to debias an individual. We argue that the concept of "cognitive hazard" - the potential for the costs of a bias to increase as individuals are insulated from the adverse effects of the bias - should be added to the concept of moral hazard as important qualifications to paternalistic proposals.

Number of Pages in PDF File: 44

Keywords: Paternalism, Insurance, Behavioral Law and Economics, Psychology, Learning, Mistake

JEL Classification: D6, D8, I2, K1, K2, K3

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Date posted: July 23, 2005 ; Last revised: January 29, 2010

Suggested Citation

Klick, Jonathan and Mitchell, Gregory, Government Regulation of Irrationality: Moral and Cognitive Hazards. Minnesota Law Review, Vol. 90, p. 1620, 2006; FSU College of Law, Law and Economics Research Paper No. 05-16; FSU College of Law, Public Law Reserch Paper No. 160. Available at SSRN: http://ssrn.com/abstract=766824

Contact Information

Jonathan Klick (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
2157463455 (Phone)
Erasmus School of Law ( email )
3000 DR Rotterdam
Netherlands
PERC - Property and Environment Research Center
2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Gregory Mitchell
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-243-4088 (Phone)

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