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

55 Pages Posted: 14 Sep 2020 Last revised: 9 Apr 2021

See all articles by Doron Teichman

Doron Teichman

Hebrew University of Jerusalem - Faculty of Law

Kristen Underhill

Columbia University - Law School

Date Written: April 7, 2021

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

Suggested Citation

Teichman, Doron and Underhill, Kristen, Infected by Bias: Behavioral Science and the Legal Response to COVID-19 (April 7, 2021). American Journal of Law and Medicine (2020), Hebrew University of Jerusalem Legal Research Paper, Forthcoming, Columbia Law and Economics Working Paper No. 646, Available at SSRN: https://ssrn.com/abstract=3691822 or http://dx.doi.org/10.2139/ssrn.3691822

Doron Teichman (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Kristen Underhill

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10027

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