Faculty Bibliography
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For fans of Thinking Fast and Slow and The Power of Habit, a groundbreaking new study of how disrupting our well-worn routines, both good and bad, can rejuvenate our days and reset our brains to allow us to live happier and more fulfilling lives.Have you ever noticed that what is thrilling on Monday tends to become boring on Friday? Even exciting relationships, stimulating jobs, and breathtaking works of art lose their sparkle after a while. People stop noticing what is most wonderful in their own lives. They also stop noticing what is terrible. They get used to dirty air. They stay in abusive relationships. People grow to accept authoritarianism and take foolish risks. They become unconcerned by their own misconduct, blind to inequality, and are more liable to believe misinformation than ever before. But what if we could find a way to see everything anew? What if you could regain sensitivity, not only to the great things in your life, but also to the terrible things you stopped noticing and so don’t try to change? Now, neuroscience professor Tali Sharot and Harvard law professor (and presidential advisor) Cass R. Sunstein investigate why we stop noticing both the great and not-so-great things around us and how to “dishabituate” at the office, in the bedroom, at the store, on social media, and in the voting booth. This groundbreaking work, based on decades of research in the psychological and biological sciences, illuminates how we can reignite the sparks of joy, innovate, and recognize where improvements urgently need to be made. The key to this disruption—to seeing, feeling, and noticing again—is change. By temporarily changing your environment, changing the rules, changing the people you interact with—or even just stepping back and imagining change—you regain sensitivity, allowing you to more clearly identify the bad and more deeply appreciate the good.
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The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. With Burkean and Thayerian arguments at work, the Court offers an understanding of the Due Process Clause which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty.” Within the opinion’s logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of nontraditional or antitraditionalist substantive due process cases into doubt. There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditional or antitraditionalist jurisprudence in other areas of constitutional law. A central reason must be that the Court believes in some forms of moral progress. The central weakness of the Dobbs opinion is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.
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Scientific evidence regularly guides policy decisions, with behavioural science increasingly part of this process. In April 2020, an influential paper proposed 19 policy recommendations (‘claims’) detailing how evidence from behavioural science could contribute to efforts to reduce impacts and end the COVID-19 pandemic. Here we assess 747 pandemic-related research articles that empirically investigated those claims. We report the scale of evidence and whether evidence supports them to indicate applicability for policymaking. Two independent teams, involving 72 reviewers, found evidence for 18 of 19 claims, with both teams finding evidence supporting 16 (89%) of those 18 claims. The strongest evidence supported claims that anticipated culture, polarization and misinformation would be associated with policy effectiveness. Claims suggesting trusted leaders and positive social norms increased adherence to behavioural interventions also had strong empirical support, as did appealing to social consensus or bipartisan agreement. Targeted language in messaging yielded mixed effects and there were no effects for highlighting individual benefits or protecting others. No available evidence existed to assess any distinct differences in effects between using the terms ‘physical distancing’ and ‘social distancing’. Analysis of 463 papers containing data showed generally large samples; 418 involved human participants with a mean of 16,848 (median of 1,699). That statistical power underscored improved suitability of behavioural science research for informing policy decisions. Furthermore, by implementing a standardized approach to evidence selection and synthesis, we amplify broader implications for advancing scientific evidence in policy formulation and prioritization.
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Does the Constitution guarantee free speech on university campuses? The Supreme Court has essentially said so, at least insofar as we are speaking of public universities. Some private universities are interested in adhering to the First Amendment, even though it does not bind them. But what do First Amendment protections entail or require? It is clear that in general, universities may not discriminate on the basis of viewpoint. It is also clear that as educational institutions, universities may sometimes regulate speech to protect their essential mission – by, for example, forbidding “true threats,” prohibiting plagiarism, protecting speakers from being shouted down, forbidding students from taking over buildings, and ensuring that students and teachers focus on the topics of their courses. By exploring thirty-seven scenarios, it is possible to concretize these general propositions, and to see which questions are easy and which questions are hard. The broadest conclusion is that to the extent that universities seek to comply with the First Amendment, they must permit a great deal of speech that is offensive, hateful, and even horrifying.
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Liberals see human beings as subjects, not objects. They reject despotism in its many forms. With Justice Robert Jackson, liberals believe that “compulsory unification of opinion achieves only the unanimity of the graveyard.” Liberal authoritarianism is an oxymoron. Illiberal democracy is illiberal, and liberals oppose it for that reason. Liberals are puzzled by many of those, on the left and the right, who describe themselves as “antiliberal” or “postliberal.” With respect to some claims of “antiliberals” or “postliberals,” liberals agree with Amos Tversky and Daniel Kahneman: “The refutation of a caricature can be no more than a caricature of refutation.” With respect to those claims of “antiliberals” or “postliberals” that do not amount to a caricature, liberals insist on the importance of freedom of thought and action and deliberative democracy, and on the need to respect reasonable pluralism.
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There are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress's likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections.
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In 1921, John Maynard Keynes and Frank Knight independently insisted on the importance of making a distinction between uncertainty and risk. Keynes referred to matters about which “there is no scientific basis on which to form any calculable probability whatever.” Knight claimed that “Uncertainty must be taken in a sense radically distinct from the familiar notion of Risk, from which it has never been properly separated.” Knightian uncertainty exists when people cannot assign probabilities to imaginable outcomes. People might know that a course of action might produce bad outcomes A, B, C, D, and E, without knowing much or anything about the probability of each. Contrary to a standard view in economics, Knightian uncertainty is real. Dogs face Knightian uncertainty; horses and elephants face it; human beings face it; in particular, human beings who make policy, or develop regulations, sometimes face it. Knightian uncertainty poses challenging and unresolved issues for decision theory and regulatory practice. It bears on many problems, potentially including those raised by artificial intelligence. It is tempting to seek to eliminate the worst-case scenario (and thus to adopt the maximin rule), but serious problems arise if eliminating the worst-case scenario would (1) impose high risks and costs, (2) eliminate large benefits or potential “miracles,” or (3) create uncertain risks.
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Do people like financial nudges? To answer that question we conducted a survey presenting people with 36 hypothetical scenarios describing financial nudges. We varied levels of transparency (i.e. explaining how the nudge worked), framing (nudges framed in terms of spending, or saving), and ”System” (nudges could either target System 1 or System 2). Participants were a random sample of 2,000 people drawn from a representative Australian population. All financial nudges were tested across six domains: approval, perceived benefit, perceived ethics, perceived manipulation, the likelihood of use, as well as the likelihood of use if the nudge were to be proposed by a bank. Results indicate that people generally approve of financial nudges, rating them as neutral to positive across all domains (except for manipulation, which was reverse coded). We find effects of framing and System. People have strong and significant preferences for System 2 nudges, and nudges framed in terms of savings. Transparency was not found to have a significant impact on how people rate financial nudges. Financial nudges continue to be rated positive, regardless of the messenger. Looking at demographics, we find that participants who were female, younger (under 35), living in urban areas and richer (earning over 80,000 AUD) were most likely to favour financial nudges. We discuss the implications for these results as applied to the financial sector.
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In Republican and Democratic administrations, regulatory and funding decisions have both been made with close reference to benefit-cost analysis (BCA). With respect to regulation, there has been a great deal of scholarly discussion of BCA and its limits, but almost no attention has been paid to the role of BCA in government funding. That is a serious gap, not least in connection with climate-related risks, such as wildfire, drought, extreme heat, and flooding. In OMB Circular A-94, the Office of Management and Budget has long required applicants for federal funding to demonstrate that the benefits of their projects would exceed the costs. Under Circular A-94, efficiency-based BCA can produce results that fail to maximize welfare and that are also highly inequitable. The 2023 revision of Circular A-94, focused on welfare and equity, reflects an effort to incorporate new academic thinking over the past three decades, which is now—not uncontroversially—being brought directly into policy. At the same time, the new Circular A-94 raises fresh questions about how best to promote welfare, and to consider equity, in practice. Pressing issues involve the use of distributional weights in funding decisions and also the use of averages across populations, which might be seen as a form of distributional weighting. More broadly, the trajectory of this benefit-cost guidance, which predates the guidance for regulation and originally covered regulation, helps uncover the logic under which BCA has been operating and deeper challenges and tensions within BCA, in the past and going forward.
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Why are take up rates incomplete or low when the relevant opportunities are unambiguously advantageous to people who are eligible for them? How can public officials promote higher take up of opportunities? All over the world, these are challenges of the first order. There are three primary barriers to take up: learning costs, compliance costs, and psychological costs. These costs lower the net expected benefit of opportunities, and reduce participation in otherwise advantageous programs. Fully rational agents would consider these costs in their take up decisions, and in light of behavioral biases, such costs loom especially large and may seem prohibitive. Experimental and other evidence suggest methods for reducing the barriers to take up and the effects of behavioral biases. Use of such methods has the potential to significantly increase access to a wide range of opportunities that would increase individual well-being and social welfare.
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In the last two decades, there has been an extraordinary outpouring of careful historical work on two of the most fundamental questions in constitutional law: (1) whether Congress may delegate open-ended discretionary power to the executive branch (or others) and (2) whether Congress may restrict the president’s power to remove high-level officials in the executive branch. The best reading of the new evidence is that there was no robust nondelegation doctrine at the founding period, if there was a nondelegation doctrine at all. Though the issue is closer, the best reading of the new evidence is that during the founding period, the Constitution was understood to authorize Congress to restrict the president’s power of removal, even over principal officers (with important qualifications). Understood in terms of its original public meaning, the Constitution almost certainly allowed Congress to grant very broad discretion to the executive branch and also permitted Congress to limit the president’s removal authority over (some) principal officers. What is remarkable is that in both contexts, no originalist on the Court has been convinced by the relevant evidence, or even seriously grappled with it. Any explanation of the apparent impotence of historical evidence in this context (or others) would be speculative, but there are three plausible accounts. The first points to a simple lack of awareness of the relevant evidence and the crucial role of epistemic communities in constitutional law. The second is Bayesian and spotlights rational updating. The third points to motivated reasoning. All three accounts offer lessons for lawyers and others seeking to marshal historical evidence to disrupt engrained judicial beliefs.
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This article discusses the opportunities and costs of AI in behavioural science, with particular reference to consumer welfare. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in consumer behaviour and (2) known biases in novel situations in which consumers find themselves. AI will also allow behavioural interventions to be personalised and contextualised and thus produce significant benefits for consumers. Finally, AI can help behavioural scientists to “see the system,” by enabling the creation of more complex and dynamic models of consumer behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve consumer outcomes, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. For consumers, some of those costs involve privacy; others involve manipulation of choices.
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Machine learning algorithms are increasingly able to predict what goods and services particular people will buy, and at what price. It is possible to imagine a situation in which relatively uniform, or coarsely set, prices and product characteristics are replaced by far more in the way of individualization. Companies might, for example, offer people shirts and shoes that are particularly suited to their situations, that fit with their particular tastes, and that have prices that fit their personal valuations. In many cases, the use of algorithms promises to increase efficiency and to promote social welfare; it might also promote fair distribution. But when consumers suffer from an absence of information or from behavioral biases, algorithms can cause serious harm. Companies might, for example, exploit such biases in order to lead people to purchase products that have little or no value for them or to pay too much for products that do have value for them. Algorithmic harm, understood as the exploitation of an absence of information or of behavioral biases, can disproportionately affect members of identifiable groups, including women and people of color. Since algorithms exacerbate the harm caused to imperfectly informed and imperfectly rational consumers, their increasing use provides fresh support for existing efforts to reduce information and rationality deficits, especially through optimally designed disclosure mandates. In addition, there is a more particular need for algorithm-centered policy responses. Specifically, algorithmic transparency—transparency about the nature, uses, and consequences of algorithms—is both crucial and challenging; novel methods designed to open the algorithmic “black box” and “interpret” the algorithm’s decision-making process should play a key role. In appropriate cases, regulators should also police the design and implementation of algorithms, with a particular emphasis on the exploitation of an absence of information or of behavioral biases.
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Edição ampliada e definitiva de um dos maiores clássicos sobre tomada de decisão, escrito por Richard H. Thaler, ganhador do prêmio Nobel de economia, e Cass R. Sunstein, professor de Harvard. * Best-seller do New York Times * Mais de ...
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Many consumers suffer from inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves. In these circumstances, “Choice Engines,” powered by Artificial Intelligence (AI), might produce significant savings in terms of money, health, safety, or time. Consider, for example, choices among motor vehicles or appliances. Choice Engines might also take account of externalities, and they might nudge or require consumers to do so as well. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and externalities. It is important to emphasize that Choice Engines and AI might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus reduce consumer welfare. It is also important to emphasize that Choice Engines and AI might show behavioral biases, perhaps the same ones that human beings are known to show, perhaps others that have not been named yet, or perhaps new ones, not shown by human beings, that cannot be anticipated.
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Do people like algorithms? In this study, intended as a promissory note and a description of a research strategy, we offer the following highly preliminary findings. (1) In a simple choice between a human being and an algorithm, across diverse settings and without information about the human being or the algorithm, people in our tested groups are about equally divided in their preference. (2) When people are given a very brief account of the data on which an algorithm relies, there is a large shift in favor of the algorithm over the human being. (3) When people are given a very brief account of the experience of the relevant human being, without an account of the data on which the relevant algorithm relies, there is a moderate shift in favor of the human being. (4) When people are given both (a) a very brief account of the experience of the relevant human being and (b) a very brief account of the data on which the relevant algorithm relies, there is a large shift in favor of the algorithm over the human being. One lesson is that in the tested groups, at least one-third of people seem to have a clear preference for either a human being or an algorithm – a preference that is unaffected by brief information that seems to favor one or the other. Another lesson is that a brief account of the data on which an algorithm relies does have a significant effect on a large percentage of the tested groups, whether or not people are also given positive information about the human alternative. Across the various surveys, we do not find persistent demographic differences, with one exception: men appear to like algorithms more than women do. These initial findings are meant as proof of concept, or more accurately as a suggestion of concept, intended to inform a series of larger and more systematic studies of whether and when people prefer to rely on algorithms or human beings, and also of international and demographic differences.
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The U.S. Supreme Court has eliminated the right to abortion and is revisiting all sorts of other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason. But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself.
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Do affirmative action programs violate the Equal Protection Clause? To answer that question, Students For Fair Admissions v. President and Fellows of Harvard College offers a simple narrative with three chapters: (1) in 1868, the Fourteenth Amendment flatly prohibited all racial classifications; (2) from the late 1870s until 1954, the nation and the Court inexplicably departed from that clear constitutional command, which somehow got lost; and (3) from 1954 to the present, Brown v. Board of Education and its successors recovered the Fourteenth Amendment’s “core purpose,” which was colorblindness. The narrative is a concoction; it slides over intense constitutional struggles, social movements, and multiple forms of judicial creativity between 1868 and 1954, and also between 1954 and the present. At the same time, it is both important and difficult to identify the theory of constitutional interpretation at work in Students For Fair Admissions. It is clearly not textualist. Nor is it originalist; Justice Thomas, joined by no one, was the only member of the Court to offer an originalist argument in favor of the result. The operating theory of the Court’s opinion is best described as Dworkinian, as the Court sought both to “fit” and to “justify” the existing legal materials. But in terms of fit, Students For Fair Admissions runs into serious objections; the ruling is flatly inconsistent with both Bakke and Gratz (and essentially overrules them). In terms of justification, Students For Fair Admissions also runs into serious objections; the colorblindness principle is exceedingly difficult to defend as a matter of principle.
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This article discusses the opportunities and costs of AI in behavioural science. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in human behaviour and (2) known biases in novel situations. AI will also allow behavioural interventions to be personalised and contextualised, and thus produce significant benefits. Finally, AI can help behavioural scientists to 'see the system,' by enabling the creation of more complex and dynamic models of human behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve the lives of citizens and consumers, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. Some of those costs involve privacy; others involve manipulation.
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This article discusses the opportunities and costs of AI in behavioural science. We argue that because of pattern detection capabilities, modern AI will be able to identify (1) new biases in human behaviour and (2) known biases in novel situations. AI will also allow behavioural interventions to be personalised and contextualised, and thus produce significant benefits. Finally, AI can help behavioural scientists to 'see the system,' by enabling the creation of more complex and dynamic models of human behaviour. While these opportunities will significantly advance behavioural science and offer great promise to improve the lives of citizens and consumers, we highlight several costs of using AI. We focus on some important environmental, social, and economic costs that are relevant to behavioural science and its application. Some of those costs involve privacy; others involve manipulation.
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Os seres humanos geralmente identificam coerência e planejamento, quando nenhum desses elementos sequer existe. Tal situação ocorre nos filmes, na literatura, na história, na economia e na psicanálise – e no Direito Constitucional. No âmbito do cinema, a saga de Star Wars não foi idealizada a priori, a despeito das repetidas afirmações de George Lucas, principal autor da obra; isto agregou à construção da série os componentes de surpresa e improviso - inclusive para o próprio George Lucas. Desta maneira, se é natural que a interpretação assuma um papel penetrante e orientador na imaginação criativa, em forma de manifestação de um novo pensamento, em trabalhos individuais, mais natural ainda é que essa “serendipidade” ocorra em obras de inúmeros autores ao ser escrita ao longo do tempo. A “serendipidade” impõe rigorosas exigências na busca pela coerência na arte, na literatura, na história e no direito. Essa busca leva muitas pessoas a descreverem de forma imprecisa a natureza de seu próprio processo criativo, como George Lucas. A imprecisão surge em resposta à séria necessidade humana de conferir sentido e identificar padrões, o que é um obstáculo significativo para a compreensão e para a reflexão crítica. Independentemente de serem Jedi ou Sith, inúmeros Constitucionalistas se parecem bastante com o autor de Star Wars, quanto à simulação da essência do seu processo criativo.
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Connie Converse, a folksinger from the 1950s, is sometimes described as “the first singer-songwriter.” Her tale raises enduring questions about opportunity, what is lost and what is found, and the role of serendipity and luck. It also offers lessons about canon formation and reformation. It even has something to say about the foundations of liberalism.
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This paper explores the application of message framing as a management practice to promote change in employee behaviour for corporate sustainability. We conduct a field experiment in a German automotive company to test the effects of three different frames (emotional, normative and gain) on pro-environmental actions in relation to electric vehicle choices of 170 employees. The frames are applied via two communication channels: first, via emails to remind employees about ordering a new car and second, via pop-up notifications appearing in the online system where employees complete their orders. We find that the interventions applied in emails, but not in pop-up notifications, have significant positive effects on electric vehicle adoption. Yet, the durability of the effects is limited. Overall, gain framing in the form of cost saving information has the longest and most powerful impact on electric car choices. Our findings have implications for workplaces where employees might not yet possess strong pro-environmental beliefs, showing that employee sustainable behaviour can be enhanced by emphasising complementary gain motives.
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The judgments of human beings can be biased; they can also be noisy. Across a wide range of settings, use of algorithms is likely to improve accuracy, because algorithms will reduce both bias and noise. Indeed, algorithms can help identify the role of human biases; they might even identify biases that have not been named before. As compared to algorithms, for example, human judges, deciding whether to give bail to criminal defendants, show Current Offense Bias and Mugshot Bias; as compared to algorithms, human doctors, deciding whether to test people for heart attacks, show Current Symptom Bias and Demographic Bias. These are cases in which large data sets are able to associate certain inputs with specific outcomes. But in important cases, algorithms struggle to make accurate predictions, not because they are algorithms but because they do not have enough data to answer the question at hand. Those cases often, though not always, involve complex systems. (1) Algorithms might not be able to foresee the effects of social interactions, which can depend on a large number of random or serendipitous factors, and which can lead in unanticipated and unpredictable directions. (2) Algorithms might not be able to foresee the effects of context, timing, or mood. (3) Algorithms might not be able to identify people’s preferences, which might be concealed or falsified, and which might be revealed at an unexpected time. (4) Algorithms might not be able to anticipate sudden or unprecedented leaps or shocks (a technological breakthrough, a successful terrorist attack, a pandemic, a black swan). (5) Algorithms might not have “local knowledge,” or private information, which human beings might have. Predictions about romantic attraction, about the success of cultural products, and about coming revolutions are cases in point. The limitations of algorithms are analogous to the limitations of planners, emphasized by Hayek in his famous critique of central planning. It is an unresolved question whether and to what extent some of the limitations of algorithms might be reduced or overcome over time, with more data or various improvements; calculations are improving in extraordinary ways, but some of the relevant challenges cannot be solved with ex ante calculations.
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In evaluating interventions, policymakers should consider both their welfare effects, including their effects on people’s emotional states, and their effects on distributive justice, including their effects on those at the bottom of the economic ladder. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) revealed preferences and effects on participation rates. The arguments are also meant as a plea for investigation and specification of the effects of such interventions on experienced well-being. If interventions give people a sense of security and safety, that is a strong point in their favor; if they make people feel frightened and sad, that is a strong point against them. A central concern is that policymakers sometimes neglect the emotional impact, whether negative or positive, of behaviorally informed interventions. Personalized approaches can promote distributive goals and also target interventions to those who are most likely to be helped by them.
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The concept of the rule of law is invoked for purposes that are both numerous and diverse, and that concept is often said to overlap with, or to require, an assortment of other practices and ideals, including democracy, free elections, free markets, property rights, and freedom of speech. It is best to understand the concept in a more specific way, with a commitment to seven principles: (1) clear, general, publicly accessible rules laid down in advance; (2) prospectivity rather than retroactivity; (3) conformity between law on the books and law in the world; (4) hearing rights; (5) some degree of separation between (a) law-making and law enforcement and (b) interpretation of law; (6) no unduly rapid changes in the law; and (7) no contradictions or palpable inconsistency in the law. This account of the rule of law conflicts with those offered by (among many others) Friedrich Hayek and Morton Horwitz, who conflate the idea with other, quite different ideas and practices. Of course it is true that the seven principles can be specified in different ways, broadly compatible with the goal of describing the rule of law as a distinct concept, and some of the seven principles might be understood to be more fundamental than others.
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Judges and lawyers sometimes act as if a constitutional or statutory term must, as a matter of semantics, be understood to have a particular meaning, when it could easily be understood to have another meaning, or several other meanings. When judges and lawyers act as if a legal term has a unique semantic meaning, even though it does not, they should be seen to be drawing extravagant inferences. Some constitutional provisions are treated this way; consider the idea that the vesting of executive power in a president of the United States necessarily includes the power to remove, at will, a very wide range of people who are involved in execution of the laws. Some statutory provisions are also treated this way; consider the idea that the term “air pollutant” necessarily includes greenhouse gases. Those who draw extravagant inferences might be engaged in a form of motivated reasoning; their (unarticulated) values and preferences might be responsible for the particular inferences they draw. Alternatively, they might be engaged in an unacknowledged form of Dworkinian reasoning, in which they are attempting to make the best constructive sense out of a legal term. There is a relationship between extravagant inferences and the perception of having been subject to "constitutional gaslighting."
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A uniform value of a statistical life (VSL) is part of established practice within the federal government. Some people have applauded a uniform VSL on the ground that it respects the equality of persons; takes harm to poor people as seriously as it does harm to wealthy people; avoids expressive harms; and builds appropriate wealth redistribution into regulatory policy. Other people have strenuously objected to a uniform VSL, emphasizing that to reduce mortality risks, poor people are willing to pay less than rich people are, and urging that poor people should not have to pay more than they are willing to pay. Whether a uniform VSL is in the interest of poor people depends on whether we are dealing with subsidies or regulations. In the case of subsidies, a uniform VSL is highly likely to benefit poor people. If we are dealing with regulations, we cannot know whether a uniform VSL helps or harms poor people without knowing the incidence of costs (and benefits).
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The "supreme law of the land" includes "this Constitution," and federal officers are "bound, by oath or affirmation, to support this Constitution." In recent years, some people have argued that these words require oath-takers to be originalists and to follow the Constitution's "original public meaning," properly understood. An understanding of this argument requires an exploration of the diverse forms and conceptions of originalism, which raise puzzles of their own. Whether or not we embrace some form of originalism, the broader point is this: the claim that the term "this Constitution" mandates a contested theory of interpretation, including a contested form of originalism, belongs in the same category with many other efforts to resolve controversial questions in law by reference to the supposed dictate of some external authority. Whether maddening or liberating, there is nothing that communication just is, nor is there any such dictate. The choice is ours.
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In some circles, there is a misconception that within government, the only or principal uses of behavioral science consist of efforts to nudge individual behavior (sometimes described, pejoratively and unfairly, as "tweaks"). Nothing could be further from the truth. Behavioral science has been used, and is being used, to help inform large-scale reforms, including mandates and bans directed at companies (as, for example, in the cases of fuel-economy mandates and energy efficiency mandates). Behavioral science has been used, and is being used, to help inform taxes and subsidies (as, for example, in the cases of cigarette taxes, taxes on sugar-sweetened beverages, and subsidies for electric cars). Behavioral science has been used, and is being used, to help inform nudges imposed on companies (with such goals as reducing greenhouse gas emissions, improving occupational safety, and protecting personal privacy). Some important interventions are indeed aimed at individuals (as with fuel economy labels, nutrition labels, calorie labels, and automatic enrollment in savings plans); sometimes interventions have significant positive effects and there is no evidence that they make more aggressive forms less likely. Choice-preserving interventions, such as nudges, do not "crowd out" more aggressive approaches.
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All over the world, private and public institutions have been attracted to “nudges,” understood as interventions that preserve freedom of choice, but that steer people in particular directions. The most effective nudges are often “defaults,” which establish what happens if people do nothing. For example, automatic enrollment in savings plans is a default nudge, as is automatic enrollment in green energy. Default rules are in widespread use, but we have very little information about how people experience them, whether they see themselves as manipulated by them, and whether they approve of them in practice. In this book, Patrik Michaelsen and Cass R. Sunstein offer a wealth of new evidence about people’s experiences and perceptions with respect to default rules. They argue that this evidence can help us to answer important questions about the effectiveness and ethics of nudging. The evidence offers a generally positive picture of how default nudges are perceived and experienced. The central conclusion is simple: empirical findings strongly support the conclusion that, taken as such, default nudges are both ethical and effective. These findings, and the accompanying discussion, have significant implications for policymakers in many nations, and also for the private sector.
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Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of thinking, whether we are speaking of religious practices, family arrangements, political associations, civi associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion; it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to defend it, but to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails--of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator's "fixed points," which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.
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Algorithms are designed to learn user preferences by observing user behaviour. This causes algorithms to fail to reflect user preferences when psychological biases affect user decision making. For algorithms to enhance social welfare, algorithm design needs to be psychologically informed.
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With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. Responding to the constitutional crisis of 1876, the Electoral Count Act of 1887 ("ECA") attempted to offer more specific rules. The ECA was a major advance, but in important ways, it was exceedingly complicated and ambiguous, leaving important puzzles and gaps. The Electoral Count Reform Act of 2022 ("ECRA"), amending the ECA in response to the horrors of January 6, 2022, is a phenomenal achievement; on essentially all questions, it offers a great deal of clarity. The signal virtue of the ECRA is that it vindicates the rule of law by sharply cabining the discretion of both Congress and the states. For the first time in U.S. history, the ECRA requires the rule of law in presidential elections, by limiting the risk of on-the-spot, ex post maneuvering in either Congress or the states.
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Sludge—excessive time consumed in performing a task—imposes a burden on society. Administrative burdens, reporting requirements, paperwork requirements, waiting time, in-person appearances, and much more operate as a kind of an essential between human beings and something that connects their life. Sludge imposes time-tax (opportunity cost), monetary cost, and psychological costs upon society. There should be a sludge audit to quantify the magnitude of such costs—knowledge of the sludge magnitude would provide the basis for the efforts aimed at sludge-reduction One of the many ways to reduce sludge would be to nudge people into doing something. Nudges, however, are a function of human behaviour, therefore, it is important to understand human behaviour regarding what motivates a person to do something or refrain from another. Human beings suffer from cognitive scarcity, and they have a limited processing capacity in their mind. If we are sick, elderly, or suffering from incapacity, the cognitive ability will be reduced further. We have spent a great deal of time debating economic scarcity over the last hundred years. Now, we need to spend a great deal of time in the next hundred years debating cognitive scarcity.
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Should there be a right not to be manipulated? On Kantian grounds, manipulation, lies and paternalistic coercion are moral wrongs, and for similar reasons; they deprive people of agency, insult their dignity, and fail to respect personal autonomy. On welfarist grounds, manipulation, lies and paternalistic coercion share a different characteristic; they displace the choices of those whose lives are directly at stake, and who are likely to have epistemic advantages, with the choices of outsiders, who lack critical information. Kantians and welfarists should be prepared to endorse a (moral) right not to be manipulated, though on very different grounds. At the same time, the creation of a legal right not to be manipulated raises hard questions, in part because of definitional challenges. With welfarist considerations in mind, it is best to start by prohibiting the most egregious instances of manipulation, while emphasizing that they may not count as fraud or deception. The basic goal should be to build on the claim that in certain cases, manipulation is a form of theft; the law should forbid theft, whether it occurs through force, lies, or manipulation.
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Bob Dylan celebrates “songs about roses growing out of people’s brains and lovers who are really geese and swans that turn into angels.” He thinks that “museums are vulgar,” because “they’re all against sex.” He proclaims,“Folk music is a bunch of fat people.” He notes, “Just because someone mentions the word ‘bomb,’ I’m not going to go ‘Aalee!’ and start clapping.” These remarks about lovers who are really geese, museums, folk music, and protest songs capture Dylan’s distaste for whatever is rote or routine, and help explain his refusal to identify with the social movements of the 1960s. The remarks also tell us something about the central themes of “Desolation Row” and “The Philosophy of Modern Song,” and also about why “Like A Rolling Stone” is not a finger-pointing song but a celebration of movement and rootlessness. Dylan’s work is dishabituating, and he cherishes the dishabituating power of music and art in general.
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Are falsehoods protected by the First Amendment? To answer that question, we need a framework. Four questions matter. The first question involves the speakers’ State of Mind (and hence their level of culpability). In saying something that is false, people might be (1) lying, (2) reckless, (3) negligent, or (4) reasonable but mistaken. The second question involves the Magnitude of Harm. How much damage is caused by the falsehood? There is a continuum here, but for heuristic purposes, let us say that the damage might be (1) grave, (2) moderate, (3) minor, and (4) nonexistent. The third question involves the Likelihood of Harm. Here too we have a continuum, including (1) certain, (2) probable, (3) improbable, and (4) highly improbable. The fourth and final question involves the Timing of Harm. Yet again there is a continuum, but for heuristic purposes, it might be (1) imminent, in the sense of occurring immediately, (2) imminent, in the sense of the occurring in the near future, (3) occurring not in the near future but reasonably soon, or (4) occurring in the distant future. As we shift from the four sets of (1) to the four sets of (4), the argument for constitutional protection gains force.
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Applying a cost-benefit analysis to people’s problems may seem “bloodless,” but it can be a corrective to interest group lobbying, ideology, and bias.
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Many consumers suffer from present bias. To present-biased consumers, the long-term is a foreign country, and they are not sure that they will ever visit. If consumers suffer from present bias, there is room to rethink national policies in multiple domains. For example, regulatory mandates might turn out to be better than economic incentives. Fuel economy and energy efficiency mandates might produce billions of dollars in annual savings to present-biased consumers. The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of incentives that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities.
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Social and behavioral science research proliferated during the COVID-19 pandemic, reflecting the substantial increase in influence of behavioral science in public health and public policy more broadly. This review presents a comprehensive assessment of 742 scientific articles on human behavior during COVID-19. Two independent teams evaluated 19 substantive policy recommendations (“claims”) on potentially critical aspects of behaviors during the pandemic drawn from the most widely cited behavioral science papers on COVID-19. Teams were made up of original authors and an independent team, all of whom were blinded to other team member reviews throughout. Both teams found evidence in support of 16 of the claims; for two claims, teams found only null evidence; and for no claims did the teams find evidence of effects in the opposite direction. One claim had no evidence available to assess. Seemingly due to the risks of the pandemic, most studies were limited to surveys, highlighting a need for more investment in field research and behavioral validation studies. The strongest findings indicate interventions that combat misinformation and polarization, and to utilize effective forms of messaging that engage trusted leaders and emphasize positive social norms.