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Excerpted From: Doron Teichman and Kristen Underhill, Infected by Bias: Behavioral Science and the Legal Response to Covid, 47 American Journal of Law & Medicine 205 (2021) (374 Footnotes) (Full Document)


TeichmanandUnderhill“There's no magic bullet. There's no magic vaccine or therapy. It's just behaviors. Each of our behaviors, translating into something that changes the course of this viral pandemic over the next 30 days.” --Ambassador Deborah L. Birx, M.D., White House Coronavirus Task Force Coordinator, 2020.

In December of 2019 a novel coronavirus (“SARS-CoV-2”) causing an acute respiratory syndrome (“COVID-19”) appeared in the Chinese province of Wuhan. After the virus quickly spread to 114 countries and infected over 100,000 people, the World Health Organization declared a pandemic. By April 2021, the virus had spread across the globe with more than 130 million confirmed cases claiming the lives of more than 2.9 million people.

The combination of a highly contagious and lethal virus along with the lack of a therapy or a vaccine led public health officials around the world to recommend non-pharmaceutical interventions that are geared towards social distancing: namely, limiting “mixing of susceptible and infectious people through early ascertainment of cases or reduction of contact.” This, in turn, brought about an unprecedented governmental response. International borders were closed overnight and travel within countries was significantly limited. Stay-at-home orders were put in place and public gatherings were restricted. In many jurisdictions, all non-essential segments of the economy were closed, along with schools, universities, and places of worship. Sectors of the economy that remained open were quickly subjected to a comprehensive new regulatory framework.

The ultimate goal of policymakers was to bring about a change in human behavior to lower the transmission rate, so central players across the globe quickly advocated for the use of behaviorally informed policies to combat COVID-19. The Lancet, one of the world's leading medical journals, noted that “[b]ehavioural insights for COVID-19 are, therefore, of critical importance.” Similarly, the World Health Organization published a statement emphasizing that “[b]ehavioural insights are valuable to inform the planning of appropriate pandemic response measures.” The academic community quickly joined the effort, and numerous reviews by behavioral scientists highlighted potential interventions.

The call to incorporate behavioral insights into legal policymaking invokes behavioral law and economics. Over the past two decades, behavioral law and economics has had a profound impact on the legal discourse. Citations of behavioral work within legal scholarship have grown exponentially. A wide range of legal questions have been reexamined using this new method, and a new research paradigm has emerged. Yet the broad and unprecedented legal response to the COVID-19 pandemic, which, as noted, entailed a significant behavioral component, has yet to be analyzed systematically using the tools of behavioral law and economics.

This Article aims to fill this gap. More specifically, this Article deals with two distinct questions. First, it explores the way in which different behavioral phenomena influenced the political debate over the legal response to the pandemic. It analyzes the different behavioral phenomena that might have impacted the public's perception of the pandemic and examines their potential effects on the policies that were put in place.

Second, this Article considers which legal tools should be used to further the policy the law wishes to promote. More specifically, it taps into a long-standing debate about whether policymakers should make use of nudges (i.e., choice-preserving, behaviorally informed tools that encourage people to behave as desired) or mandates (i.e., obligations backed by sanctions that dictate to people how they must behave). Having presented this dichotomy, this Article argues that when peoples' choices generate massive negative externalities and when the government aims to bring about an immediate change of behavior--as is the case with a highly contagious and deadly virus-- policymakers should (and for the most part did) opt for mandates. Nonetheless, nudges can contribute to the legal response in two situations: (1) when mandates are less effective or hard to implement due to political or legal constraints, and (2) when nudges complement mandates and help foster voluntary compliance with them.

This Article is organized as follows: Part II introduces the strategic question each jurisdiction faced at the outset of the pandemic: whether to mitigate or to suppress entirely the spread of the virus. Part II then considers how different behavioral phenomena impacted this policy debate. Part III turns from ends to means and examines which legal tools should be employed to further the policy goal the jurisdiction wishes to promote: nudges or mandates. This analysis will show that, despite some thoughts that nudges could play a central role in the legal response to COVID-19, legislators and regulators should primarily rely on mandates. With this insight, Part IV shifts to examine the domains in which nudges could nonetheless be useful, providing concrete examples of nudges that have been implemented during the pandemic. Finally, Part V offers some concluding remarks on the general lessons that could be drawn from this case study and sketches potential paths for future research.

An important preliminary note is in order. Although the scientific knowledge on COVID-19 is growing, it remains incomplete. Core issues, such as the long-term implications of the virus, the strength and duration of post-infection antibodies, and the precise transmission mechanisms, are unknown at the time of publication of this Article. Similarly, the social science research on human behavior during a pandemic is nascent. Drawing causal inferences in the social sciences is always a tricky task. Doing so in the present context based on a small set of studies--some of which only report correlations impossible. Generalizing about human behavior is further complicated when behavioral choices vary across cultures (e.g., wearing a face mask), and when attitudes evolve within communities over time. Consequently, the claims made in this Article should be read with caution. To state things explicitly: this Article does not aim to end the debate regarding the appropriate legal response to COVID-19. Rather, it aims to lay the foundations for an ongoing evidence-based discussion.

[. . .]

This Article presented the first comprehensive analysis of the contribution of behavioral science to the legal response to the COVID-19 pandemic. It reviewed how different behavioral phenomena impacted the public debate regarding the legal response to the virus. We also discussed the role of nudges within the legal response to the pandemic and argued that mandates rather than nudges should serve in most cases as the primary legal tool used to promote desirable behavior. Nudges are nonetheless useful supports for behavioral change, and this Article highlighted the role nudges could play in complementing mandates and bolstering compliance.

The intersection between behavioral law and economics and the COVID-19 pandemic is likely to generate significantly more research. This research could examine issues such as public responses to shifting laws, as countries reopen and reclose in response to changes in transmission rates. This research could also address new policy goals as they emerge, such as promoting vaccination.

This Article focused on the legal response to COVID-19, but the analysis carries general lessons for behavioral law and economics. Where other policy settings demand a broad behavior change to limit large negative externalities--such as climate change and sustainability policies--this Article suggests that mandates are preferable to choice-preserving nudges. While nudges, such as electric bills that incorporate social comparisons and smart disclosures regarding energy efficiency, might lower the negative externalities people generate, “they are unlikely to make much of a dent in the problem of global warming.” Consequently, behavioral scientists and legal scholars have recognized that traditional regulatory tools like mandates and taxes are necessary to change behavior in this policy domain.

At the time of this publication, COVID-19 continues to present regulatory challenges across the globe. This Article hopes to guide policymakers and behavioral scientists in this work and help them design effective legal policies that rest on a solid scientific ground.

Doron Teichman, Jacob I. Berman Professor of Law, the Faculty of Law, the Hebrew University of Jerusalem;

Kristen Underhill, Associate Professor of Law, Columbia Law School and Associate Professor of Population and Family Health, Mailman School of Public Health, Columbia University.

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