Infected by Bias: Behavioral Science and the Legal Response to COVID-19

Abstract

This Article presents the first comprehensive analysis of the contribution of behavioral science to the legal response to the COVID-19 pandemic. At the descriptive level, the Article shows how behavioral insights were incorporated into the political debate regarding the legal response to the pandemic, and it highlights the potential misuse of such insights by interested parties. The Article further considers how different psychological phenomena such as loss aversion and cultural cognition influenced the way policymakers and the public perceived the pandemic, and how these phenomena and other cognitive biases affected the design of laws and regulations responding to COVID-19. At the normative level, the Article compares nudges (i.e., choice-preserving, behaviorally informed tools that encourage people to behave as desired) and mandates (i.e., obligations backed by sanctions that dictate to people how they must behave), and it argues that mandates rather than nudges should serve in most cases as the primary legal tool used to promote risk reduction during a pandemic. The Article nonetheless highlights the role nudges can play as complements to mandates.

Keywords: Behavioral law and economics, nudge, COVID-19, cultural cognition