Behavioral Trade-Offs: Beyond the Land of Nudges Spans the World of Law and Psychology

29 Pages Posted: 22 May 2014 Last revised: 16 Dec 2015

Yuval Feldman

Bar-Ilan University - Faculty of Law

Orly Lobel

University of San Diego School of Law

Date Written: May 20, 2014

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.

Keywords: nudge, regulation, behavioral analysis of law, EU, expressive law, behavioral economics, psychology and law

JEL Classification: K42

Suggested Citation

Feldman, Yuval and Lobel, Orly, Behavioral Trade-Offs: Beyond the Land of Nudges Spans the World of Law and Psychology (May 20, 2014). San Diego Legal Studies Paper No. 14-158. Available at SSRN: https://ssrn.com/abstract=2439179 or http://dx.doi.org/10.2139/ssrn.2439179

Yuval Feldman (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

Orly Lobel

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

HOME PAGE: http://home.sandiego.edu/%7Elobel/

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