I. INTRODUCTION
“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.Footnote 1
In December of 2019 a novel coronavirus (“SARS-CoV-2”) causing an acute respiratory syndrome (“COVID-19”) appeared in the Chinese province of Wuhan.Footnote 2 After the virus quickly spread to 114 countries and infected over 100,000 people, the World Health Organization declared a pandemic.Footnote 3 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.Footnote 4
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.”Footnote 5 This, in turn, brought about an unprecedented governmental response.Footnote 6 International borders were closed overnight and travel within countries was significantly limited.Footnote 7 Stay-at-home orders were put in place and public gatherings were restricted.Footnote 8 In many jurisdictions, all non-essential segments of the economy were closed, along with schools, universities, and places of worship.Footnote 9 Sectors of the economy that remained open were quickly subjected to a comprehensive new regulatory framework.Footnote 10
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.Footnote 11 The Lancet, one of the world’s leading medical journals, noted that “[b]ehavioural insights for COVID-19 are, therefore, of critical importance.”Footnote 12 Similarly, the World Health Organization published a statement emphasizing that “[b]ehavioural insights are valuable to inform the planning of appropriate pandemic response measures.”Footnote 13 The academic community quickly joined the effort, and numerous reviews by behavioral scientists highlighted potential interventions.Footnote 14
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.Footnote 15 Citations of behavioral work within legal scholarship have grown exponentially.Footnote 16 A wide range of legal questions have been reexamined using this new method, and a new research paradigm has emerged.Footnote 17 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.Footnote 18
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).Footnote 19 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)Footnote 20 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.Footnote 21 Similarly, the social science research on human behavior during a pandemic is nascent.Footnote 22 Drawing causal inferences in the social sciences is always a tricky task.Footnote 23 Doing so in the present context based on a small set of studies—some of which only report correlationsFootnote 24—is impossible. Generalizing about human behavior is further complicated when behavioral choices vary across cultures (e.g., wearing a face mask),Footnote 25 and when attitudes evolve within communities over time.Footnote 26 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.
II. BEHAVIORAL SCIENCE AND THE COVID-19 POLICY DEBATE
This Part presents a behavioral analysis of the policy debate leading to the adoption of governmental policies aimed to deal with the pandemic. It first describes the strategic dilemma all societies faced when initially confronting the pandemic: whether to aim to eradicate the spread of the virus or attempt to manage the gradual spread of the virus throughout the population. This Part then explores how different psychological phenomena might have influenced the public discourse surrounding this question.
A. The Dilemma
The initial decision policymakers must make when facing a pandemic is to define their overall policy goal. Fundamentally, all pandemic responses are geared towards minimizing harm, including both morbidity and mortality. Policymakers who focus on overall welfare, however, must consider other social goods as well, such as constitutional rights, human rights, and the likely economic and health consequences of any risk mitigation efforts. In the COVID-19 context, the tradeoff between COVID-19 morbidity and economic harm was salient, and it was often framed as a “lives vs. livelihood” dilemma.Footnote 27 In actuality, policymakers were also required to weigh non-consequentialist considerations such as the protection of individual liberty and privacy when contemplating the use of maximally effective infection control measures, such as electronic surveillance or forcible detention.Footnote 28 At the end of the day, a pandemic is in every respect a case of risk management that requires difficult choices.Footnote 29
From a public health perspective, all policymakers who engaged with the COVID-19 pandemic sought to flatten the curve Footnote 30: namely, to slow the spread of the virus so that cases are distributed across a longer period of time, and thereby less likely to overwhelm health systems resources at any peak point. This approach projects that unchecked transmission of the infection will eventually yield so many cases that hospitals will be overfilled, leading to deaths among patients who cannot access treatment in time.Footnote 31 Drawing on lessons from historical episodes of infectious disease, policymakers also understood early in the pandemic that social distancing can promote this goal.Footnote 32 Measures such as maintaining physical distance from others, wearing masks, washing hands, avoiding crowded or prolonged gatherings, and remaining home when potentially sick, were all viewed as important tools in combating the virus.Footnote 33 Even very early in the pandemic, models of COVID-19 spread projected that quarantine measures would reduce infections and deaths, and that early implementation would optimize quarantine effectiveness.Footnote 34
Although policymakers worldwide aimed to flatten the curve, countries diverged in their strategies for controlling the pandemic.Footnote 35 Two principal approaches took shape: the suppression strategy and the mitigation strategy. Footnote 36 According to the suppression strategy, the policy goal is not only to flatten the curve, but also to reduce sharply—or ideally, to halt—the number of total cases by adopting aggressive prevention policies.Footnote 37 Countries following this line of thought (e.g., China, New Zealand) shut down large parts of their economies that were deemed non-essential, closed schools and universities, prohibited public gatherings, and limited international and domestic travel (reverting to curfews in the most extreme cases).Footnote 38 Additionally, countries that used suppression strategies isolated infected individuals and quarantined those who were exposed to the virus (using monitored house arrests in the most extreme cases).Footnote 39 The impact of these measures was dramatic. In London, for instance, the day after a mandated lockdown went into effect, movement of residents had dropped from approximately fifty percent to fifteen percent of the usual movement level.Footnote 40 Similarly, travel in New York City’s public transportation system plummeted by over ninety percent during the early part of the pandemic.Footnote 41 One should be careful, however, not to overstate the impact of the governmental restrictions on human behavior. The pandemic itself, with the attendant deaths, illness, expenses, reallocation of resources, psychological distress, and disruption of economic sectors, influences behavior, even (and perhaps especially) if it is not accompanied by lockdown measures. For example, one study comparing Sweden (which did not lock down the economy) with neighboring Denmark (which did lock down the economy) documented relatively small differences in consumer spending between the two countries, despite their similarity along other dimensions.Footnote 42 In the United States, an analogous picture emerged from data using county level comparisons.Footnote 43
Other countries, however, pursued a different strategy to cope with the pandemic. Some countries (e.g., Sweden, the United Kingdom at the outset of the pandemic) opted for a mitigation strategy, aiming to manage, but not to eliminate, the spread of the disease throughout the population.Footnote 44 In some cases, the overall goal of the measures was to allow the virus to gradually infect a large part of the population over time, while keeping the rate of transmission low enough that hospitals would maintain capacity to treat infected people.Footnote 45 Assuming that infected people subsequently have some immunity against reinfection, this strategy is projected to yield herd immunity over time.Footnote 46 That is, a proportion of people in the population will have been infected (and therefore immune to reoccurrence), and this proportion will be large enough that uninfected people have a very low, or negligible, chance of exposure.Footnote 47 Countries that chose the mitigation strategy did not initiate a complete lockdown of their economies.Footnote 48 Rather, they shut down only the industries that posed the highest transmission risk, while allowing broad sectors of the economy, such as manufacturing, construction, retail, and restaurants, to remain open.Footnote 49
Finally, a notable distinct group of countries (e.g., South Korea, Taiwan) adopted a suppression strategy that did not involve a massive closure of the economy, but rather focused on screening at international borders, mass-testing, and comprehensive contact tracing.Footnote 50 These countries could adopt this strategy since they had a preexisting infrastructure in place to support such an approach.Footnote 51 This policy option was unavailable to other countries that were not as prepared for the outbreak.
Resolving the policy dilemma between suppression and mitigation raises ethical, distributional, and scientific questions that cannot be answered here. Furthermore, for the purposes of this Article there is no need to assume that a single correct answer to this dilemma fits all countries.Footnote 52 Rather than prescribing one of these policy approaches, we focus on the discourse surrounding the choice. More specifically, we now turn to describe how different behavioral phenomena impacted this political debate.
B. The Impact of Behavioral Phenomena on the COVID-19 Debate
This Subsection reviews the potential impact of different psychological phenomena on the COVID-19 policy debate. As the analysis shows, whereas some of these psychological forces pushed the political debate towards an aggressive legal response, countervailing psychological phenomena pushed policymakers towards the adoption of less stringent policies (or even inaction at times).
Surely, in addition to heuristics and biases, other factors had a profound effect on the policy debate. People have strong preexisting views regarding the issues on the table, and given the large stakes involved, one would expect interest groups to take an active role in crafting new policies.Footnote 53 Furthermore, the application of psychological phenomena to decisions made by the state is not obvious. For the most part, the vast body of behavioral studies focuses on individual decision making.Footnote 54 Consequently, the patterns of behavior documented in such studies might not transcend into complex institutions, such as parliaments and bureaucratic agencies. That said, there are two channels through which psychological phenomena might impact state policies.Footnote 55 First, political decision makers, just like any other persons, might be directly influenced by cognitive biases and heuristics.Footnote 56 Second, even if politicians are perfectly rational (e.g., if rational people tend to succeed in politics, or if the bureaucratic apparatus of the state leads them to more rational decisions), they may nonetheless design policies that appeal to the irrational views of the population to which they are accountable.Footnote 57 With these caveats, we can now explore the impact of behavioral phenomena on the political discourse surrounding COVID-19.
1. The Pandemic at Day 1: Risk Seeking, Omission Bias, and Procrastination
As news of COVID-19 from China, and later from Italy, spread in early 2020,Footnote 58 leaders across the world faced a dilemma whether to immediately begin implementing measures aimed at preventing transmission of the virus or to wait and see how events unfolded. While some countries were relatively quick to respond to the emerging threat,Footnote 59 “most countries hesitated to introduce strict and unpopular measures to stop the pandemic early on.”Footnote 60 The lack of timely response has been captured in New York Governor Andrew Cuomo’s acknowledgment that the virus “is an enemy that we have underestimated from Day 1 … and we have paid the price dearly.”Footnote 61
The reluctance to act on “Day 1” in many jurisdictions stemmed from numerous factors, including lack of clear information. It also seems to have had a psychological underpinning, as it persisted even in the face of clear scientific evidence that the risk was imminent.Footnote 62 In New York City, for example, the mayor pushed back the closure of public schools up until the city’s head of disease control threatened to step down.Footnote 63 More specifically, the initial tendency towards inaction might have been connected to three distinct psychological phenomena: risk seeking, omission bias, and procrastination.
Prospect theory, the most influential behavioral theory, suggests that people who face low-probability risks tend to exhibit risk-seeking behavior when they choose among options that are framed in terms of losses, and risk-averse behavior when they choose among options that are framed in terms of gains.Footnote 64 Notably, perhaps the most famous single experiment within behavioral economics is an experiment dealing the policy decisions relating to an “unusual” disease.Footnote 65 This experiment highlights individuals’ willingness to make risk seeking decisions in the context of a deadly disease when they perceive their choice involves losses.Footnote 66
A distinct psychological phenomenon is the omission bias.Footnote 67 The omission bias alludes to individuals’ tendency to prefer omissions over commissions, thus hindering deviations from the existing state of affairs.Footnote 68 To a large degree this bias is tied to loss aversion: people assign greater weight to the losses incurred when deviating from the status quo than to the potential unattained gains.Footnote 69 Furthermore, studies suggest that the omission bias transcends into individuals’ moral judgments.Footnote 70 That is, people are viewed as less responsible for harms caused by their omissions compared to harms caused by their commissions.Footnote 71 This final point could be of particular importance to politicians, who might wish to minimize their perceived responsibility for decisions that turn out badly.Footnote 72
Finally, the tendency to postpone decisions at the outbreak of the pandemic might be directly tied to a phenomenon that most readers may be closely familiar with—procrastination. Procrastination involves a voluntary delay of making a decision, despite the procrastinator’s realization that postponing the decision will leave them worse off than if they engaged in timely action.Footnote 73 As Amos Tversky and Eldar Shafir have put it: “Many things never get done not because someone has chosen not to do them, but because the person has chosen not to do them now.”Footnote 74 Unsurprisingly, psychological research has suggested that procrastination is correlated with the aversiveness of the task: people are more likely to put off tasks they view as unpleasant.Footnote 75
Arguably, all three of these psychological forces pushed policymakers towards inaction and deferral at the early stages of the pandemic. Prior to the beginning of the exponential growth in patient numbers, the status quo was one of an active economy, open schools, and freedom of movement. When facing a choice between a certain loss resulting from an affirmative decision to change the status quo and a risk of future losses based on epidemiological models, some policymakers might have viewed risky inaction as the superior option.Footnote 76 Such a choice avoids a certain loss, lowers the chance of harsh judgment because it is an omission, and defers to the future an unpleasant decision. Arguably, as the mayor of New York City faced “a stark and unwelcome choice to harm some New Yorkers in order to save others,”Footnote 77 he was reluctant to choose the certain and immediate harm.
2. Taboo Tradeoffs: Protected Values and Tradeoff Avoidance
Discussions about COVID-19 often noted that “[t]he key tradeoff is between public health and the economy.”Footnote 78 When framed in such a way—as lives vs. livelihoods, or health vs. wealth—this tradeoff has only one acceptable solution, and it is to value lives more. Appraising the value of a human life is an example of what social psychologists have termed protected (or sacred) values.Footnote 79 Protected values are instances in which people believe that absolute deontological rules prohibit certain actions no matter what the consequences of following those rules are.Footnote 80 People who hold such values tend to reject the need to conduct a cost benefit analysis with respect to them, and even deny there are any costs entailed with adhering to the protected value.Footnote 81 Tradeoffs involving protected values are therefore taboo—they stifle the political discussion.
Nonetheless, the realities of policymaking—whether in the context of choosing between investing in highway safety or national parks, or in the context of choosing when to reopen the economy during a pandemic—demand tradeoffs. And when policymakers conduct tradeoffs that weigh the value of human life, they face a significant political risk: treating a protected value like any other commensurable good can provoke moral disgust, and may even be tantamount to “political suicide.”Footnote 82 Politicians seeking to avoid taboos may consequently use rhetorical tools to help conceal the calculus underlying their choices.Footnote 83 Yet, in the domain of COVID-19, these rhetorical maneuvers may be less effective given heightened public awareness of both death tolls and job losses.Footnote 84
When policymakers advocated for the continued use of suppression measures, such as large-scale business closures and restrictions on contact, the taboo on evaluating the worth of human lives offered a persuasive way of explaining their choices. Governor Cuomo, for example, noted that there were hard tradeoffs associated with deciding to reopen the state’s economy,Footnote 85 but reframed the debate as a taboo: “How much is a human life worth? That’s the real discussion that no one is admitting openly or freely, but we should.”Footnote 86 Given the taboo framing, there was only one palatable answer to this question, and Governor Cuomo provided it: “To me, I say cost of a human–a human life is priceless, period. Our reopening plan doesn’t have a tradeoff.”Footnote 87 This is a textbook example of “tradeoff avoidance.”Footnote 88
On occasion, politicians advocating for looser restrictions or a speedy reopening consciously debated the economic value of life, but these arguments drew swift criticism. For instance, after Texas Lieutenant Governor Dan Patrick suggested that elderly grandparents may be willing to run the risk of death for the sake of the nation’s economy, many treated the statement as an example of outrageous priorities.Footnote 89 As Governor Cuomo tersely replied, “My mother’s not expendable … . And we’re not going to put a dollar figure on human life.”Footnote 90
Without weighing in on the policy choice, focusing the political debate on other tradeoffs could avoid the taboo involved with valuing human lives. More specifically, rather than viewing the decision as a matter of health versus wealth, an alternative frame could instead consider health versus health (or lives versus lives), by weighing the unique health consequences that would result from the suppression measures. Infectious disease prevention strategies—particularly those used to fully suppress a virus, such as business closures and shelter-in-place orders—carry significant health costs that would not have occurred if policymakers had made different choices.Footnote 91 Some of these health costs are direct, such as deaths due to temporary pauses in non-emergency health care,Footnote 92 food insecurity,Footnote 93 increased domestic violence,Footnote 94 and social isolation.Footnote 95 Other costs involve indirect health consequences brought about by rapid economic downturns,Footnote 96 such as psychological distressFootnote 97 and lack of access to health insurance.Footnote 98 Furthermore, as governments come under financial stress, declining investments in public infrastructure and social programs may also have indirect health consequences.Footnote 99
Given these costs, discussion over pandemic response policies could be reframed to focus on health versus health rather than health versus wealth. Glimpses of this framing have appeared in the political discourse in the United States. President Trump, for example, claimed that suicides and deaths resulting from “terrible economies … would be in far greater numbers than the numbers that we’re talking about with regard to the virus.”Footnote 100 Similarly, when Vice President Mike Pence advocated for the reopening of the economy, his key argument was that “[t]here are real costs, including the health and well-being of the American people, to continue to go through the shutdown that we are in today.”Footnote 101 Once the debate is reframed in this way, it becomes closer to an empirical question: Which strategy will cause less harm in the aggregate?Footnote 102 While this question entails significant (and perhaps some insurmountable) methodological challenges, it allows for rigorous evaluation of factual premises.
To illustrate the power of this framing, a lives versus lives comparison was at the forefront of discussions about whether to apply lockdown rules to the widespread protests against structural racism, which erupted after Minneapolis police killed George Floyd, an unarmed Black man, on May 25, 2020.Footnote 103 Although the format of these protests included large gatherings where it was impossible to maintain social distancing, many public health researchers supported the movement, and voiced their backing in terms of lives versus lives.Footnote 104 For example, over a thousand public health professionals wrote that “White supremacy is a lethal public health issue that predates and contributes to COVID-19,” and that they “support [protest gatherings] as vital to the national public health and to the threatened health specifically of Black people in the United States.”Footnote 105 As epidemiologist Jennifer Nuzzo summarized on Twitter, “In this moment the public health risks of not protesting to demand an end to systemic racism greatly exceed the harms of the virus.”Footnote 106 A survey of United States adults found that sixty-seven percent supported the Black Lives Matter (“BLM”) movement in June 2020, suggesting that this framing was appealing on a larger scale.Footnote 107 Notably, BLM protesters generally wore masks, conducted activities outdoors, and took additional precautions; as of this writing, peer-reviewed papers have shown small, if any, effects of these protests on COVID-19 transmission.Footnote 108
Reframing discussions about COVID-19 restrictions in terms of lives and health consequences may sidestep the taboo nature of human-life tradeoffs. Adopting this strategy, however, might be unsuccessful when listeners perceive an ulterior motive—namely, that policymakers emphasizing the costs of pandemic control measures actually seek power, wealth, or political returns from economic activity. Research on the correspondence bias (also called the fundamental attribution bias) demonstrates that when someone takes a given action, even under situational constraints, onlookers tend to interpret that action as evidence of her “true” motives, traits, and character.Footnote 109 When, however, onlookers suspect that the actor has an ulterior and self-interested motive, they are less likely to view her behavior as reflective of her actual values; instead, they consider contrary hypotheses about her sincerity, and they raise questions about what she is hiding.Footnote 110 This state of suspicion disrupts correspondence bias and can prevent actors from credibly signaling good motivations by their good actions.Footnote 111 Unsurprisingly, people are more likely to suspect ulterior motives when the actor is a member of a political outgroup.Footnote 112
When people make health-focused arguments, rather than economy-focused arguments, some observers will consider possible ulterior motives that attenuate these messages.Footnote 113 Thus, for example, after President Trump attempted to reframe the debated in terms of health versus health, commenters quickly suggested that “Trump will sacrifice Americans to coronavirus if it will save the market and his prospects for re-election.”Footnote 114
3. Subjective Probability Estimates
Assuming people are willing to conduct tradeoff analysis with respect to the public health policies put in place during a pandemic, this discussion requires some type of risk assessment. Perceptions of risk are particularly important to the COVID-19 policy response because risk perception is a principal driver of support for pandemic control measures.Footnote 115 This understanding echoes findings from previous pandemics, which highlight a correspondence between people’s perceived susceptibility to the disease and their preventative behavior.Footnote 116
Since the emergence of behavioral economics in the 1970s, behavioral scientists have studied extensively the processes through which people derive the subjective probability of an event.Footnote 117 The main finding of this body of work is that when people are asked to estimate the probability of an event, they often are not cold and calculated Bayesians.Footnote 118 Rather, probability assessments are derived from a subjective process involving an array of heuristics and biases.Footnote 119
A well-documented behavioral phenomenon that seems to have played a role in the initial stages of the pandemic is the availability heuristic. This heuristic suggests that people often determine the likelihood of events and the frequency of occurrences according to the ease of recalling similar events or occurrences.Footnote 120 Events that are vivid and salient (e.g., an airplane crash) are presumed to be more likely, simply because they are memorable.Footnote 121 Interestingly, some of the seminal studies on availability dealt with the question of how people estimate the frequency of different types of lethal events, including distinct diseases.Footnote 122 These studies suggest that people tend to overestimate causes of death that are vivid and sensational, whereas they underestimate causes of death that may be described as undramatic, quiet killers.Footnote 123
Moving from the individual to the collective, it has been suggested that availability cascades might further impact political decisions. Such cascades involve “a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception [of] increasing plausibility through its rising availability in public discourse.”Footnote 124 The resulting mass pressure could cause policymakers to misjudge particular risks, leading to disadvantageous regulation.
As others have noted, the COVID-19 pandemic “hits all the hot buttons” as far as availability is concerned.Footnote 125 It is new, mysterious, and drew global attention. The places worst hit by the virus—Wuhan, northern Italy, New York City—generated dramatic pictures and heartbreaking stories, which were reported widely on traditional and social media along with far more limited reporting on areas that were not hit as badly.Footnote 126 Similarly, high profile cases such as the hospitalization of Tom Hanks,Footnote 127 Prime Minster Boris Johnson’s “brush with death,”Footnote 128 and the passing away of numerous public figures like the legendary playwright Terrence McNally and Grammy-winning trumpeter Wallace Roney drew significant media attention.Footnote 129 Such coverage likely elevated people’s probability assessment of incurring harm from the virus.Footnote 130
While the availability heuristic seems to have played a role in elevating the perceived threat of COVID-19 at the outset of the pandemic, there are reasons to assume that this elevated risk assessment will decline as the pandemic progresses. For one, as the virus becomes part of the “new normal,” media coverage and public discourse shift to other topics.Footnote 131 Furthermore, people may go through a process of psychological adaptation, and cease viewing COVID-19 as vivid and special.Footnote 132 Consequently, information about the virus becomes less available (relatively speaking), and subjective probability estimates regarding the risk may diminish over time.
Other psychological forces might even cause people to underestimate COVID-19 risks. Over-optimism is one such force. Behavioral studies show that people tend to systematically underestimate the probability of adverse events, such as car accidents, divorces, unemployment, unwanted pregnancy, and criminal victimization.Footnote 133 In the health context, it has similarly been shown that over-optimism can lead people to underestimate the risk of heart attacks and other negative health events.Footnote 134 To the extent these findings carry over to the COVID-19 context, they suggest that people might underestimate risks posed by the virus.
Furthermore, people’s risk underestimation might rise as the pandemic progresses. When dealing with repeated behavior (and by definition, life during a pandemic entails day-to-day repeated behavior), people tend to estimate risks based on a small sample of their recent experiences.Footnote 135 For example, workers or drivers who routinely participate in a risky activity might adopt an “it won’t happen to me” attitude, simply because an accident did not occur recently.Footnote 136 Similarly, those who were not infected by the virus, or those who were unaware of their infection since they were asymptomatic, might underestimate the risks of the virus based on their personal past experience.Footnote 137 Note that even in New York City, one of the early epicenters of the pandemic, the vast majority of the population was not infected by the virus during the first months of the pandemic, and a majority of those infected did not exhibit COVID-19 symptoms.Footnote 138
To conclude, the overall picture with respect to subjective probability assessments seems similar to one described with respect to taboo tradeoffs. Initially, given the novelty of COVID-19, the availability heuristic might have caused people to overestimate the risks associated with the virus, pushing legal policies to be more aggressive. Over time, however, as the virus became part of the daily reality, countervailing behavioral phenomena might have brought about a more complex reality with respect to subjective risk assessments.
4. Evaluability, Ranking, and Public Policy
An additional factor that is likely to play a role in the public debate surrounding COVID-19 is the evaluability bias. Footnote 139 Behavioral findings suggest that when people face complex multidimensional decisions, they tend to put excessive weight on the dimensions of the decision that are easy to evaluate.Footnote 140 For example, when choosing between charitable organizations, people tend to give greater weight to the overhead ratio (which is easy to evaluate) as opposed to cost-effectiveness (which is difficult to evaluate).Footnote 141 Because ease of evaluation is not a normative criterion, this bias suggests that people make systematically suboptimal choices when facing complex decisions.Footnote 142
By any account, the political decisions relating to the pandemic involved a complex balancing among many competing interests.Footnote 143 Some of these interests were easy to evaluate. Most notably, the direct health impact of the pandemic in terms of confirmed cases and mortality could be measured on a daily basis. Additional interests impacted by COVID-19 related policies, however, were much more difficult to evaluate. Some of these interests entail complex measurement problems such as ascertaining the increase in domestic violence that could be attributed to lockdowns.Footnote 144 Others are simply impossible to measure in a precise fashion, such as the cost of lost privacy due to intrusive surveillance policies.Footnote 145
Throughout the pandemic, the major health metrics associated with COVID-19—confirmed cases and mortality rates—were displayed saliently by media outlets around the world.Footnote 146 At the same time, other relevant factors that are more difficult to measure, received far less attention in the public discourse. Research on the evaluability bias suggests that policymakers in such a decision-making environment might put excessive weight on the measurable health metrics, and consequently adopt policies that are geared towards minimizing those metrics while undervaluing other dimensions of human welfare.Footnote 147
The tendency to give excessive weight to confirmed cases and mortality rates might have been further exacerbated by the fact that countries were constantly compared and ranked throughout the pandemic.Footnote 148 These rankings focused on simple quantifiable metrics, most notably case numbers and mortality rates.Footnote 149 As the behavioral research has shown, the act of ranking creates a strong motivational force to outperform others.Footnote 150 This effect seems to impact policies at the national level, as countries tend to exhort additional effort to surpass other countries when international rankings exist.Footnote 151
5. Parsing the Politics of COVID-19
During the early stages of the pandemic, aggressive suppression measures garnered large margins of political support worldwide.Footnote 152 As suggested, this support likely built on numerous psychological phenomena that made restrictive measures more appealing despite their significant costs. For example, one study, conducted between late March and early April of 2020, using survey data from fifty-eight countries and over 100,000 respondents, found that the adoption of stricter measures by the government was associated with an increase in the public’s belief that the government’s reaction to the pandemic was appropriate.Footnote 153 Another study, conducted in Europe, showed that lockdowns were associated with a statistically significant increase in support for the elected president or prime minster.Footnote 154
As the pandemic progressed, however, discussions about continuing lockdown restrictions have grown more nuanced, with some of the initial support seeming to erode.Footnote 155 The causal mechanisms underlying this erosion are complex. Arguably, they stem from multiple factors including the changing realities of the pandemic and the dynamics of psychological phenomena (discussed above). This Subsection highlights an additional factor and considers the role of political partisanship and social norms in risk perceptions surrounding COVID-19 and policy decision-making. Given that risk perception is a principal driver of support for pandemic control measures,Footnote 156 and partisanship drives concern about COVID-19, partisanship likely drives preferred responses as well. In the interest of brevity and our comparative competence, this Subsection focuses on the United States.Footnote 157
Thus far, the pandemic has illuminated a remarkable correspondence among political affiliation, perceptions of risk, and preferred COVID-19 policy responses in the United States. Risk perceptions diverged at the outset of the pandemic; in early March, polls showed that nearly two-thirds of Republicans, but less than one third of Democrats, believed that concerns about COVID-19 were “greatly exaggerated,” while two-thirds of Democrats, but only one-third of Republicans, were concerned about the virus.Footnote 158 Preliminary studies have found partisan divides in predictions of the death toll and perceptions about the effectiveness of pandemic control measures (e.g., social distancing).Footnote 159 Republicans and Democrats also differ in their willingness to believe conspiracy theories about the origins of COVID-19.Footnote 160 These differences also extended to political leaders and their policy choices. Republican governors were slower to adopt closures and stay-at-home restrictions, and the most crucial predictors of policy timing were political.Footnote 161 In fact, governors’ political affiliations were far more important than the percentage of a state’s population actually infected with COVID-19 in predicting the timing of lockdown orders.Footnote 162
This divergence in risk perceptions has continued throughout the pandemic. As some states began reopening in May 2020, eighty-seven percent of Democratic-leaning people said they were more concerned states would lift restrictions too quickly, while fifty-three percent of Republican-leaning people said they were more concerned states would not lift restrictions quickly enough.Footnote 163 Even in late June 2020, as cases rose, sixty-one percent of Republicans agreed that “the worst is behind us,” while seventy-six percent of Democrats thought that the worst is “still to come.”Footnote 164 In the same poll, Republicans reported declines in the belief that they would personally get COVID-19 and need hospitalization, while Democrats’ beliefs did not change.Footnote 165 Political partisanship explained the largest differences in people’s willingness to resume social contact—more so than race, geography, gender, or age.Footnote 166
Partisanship has also driven compliance with pandemic control measures. One analysis drawing on county voting records found that Republican counties were less likely to abide by stay-at-home orders than Democratic counties,Footnote 167 and that people were more likely to abide by orders issued by governors of their own party.Footnote 168 A mid-March 2020 survey found that political partisanship was “the most consistently related” factor to Americans’ attitudes and behaviors regarding COVID-19, with Democrats more likely to report hand-washing, hand sanitizer purchases, avoiding contact with others, self-quarantining, self-educating about COVID-19, worrying about the virus, and believing that the United States should increase spending on the virus.Footnote 169 A mid-April 2020 survey reported similar results, additionally finding that Democrats were more likely to wear masks, wear gloves, wipe down groceries, work from home, and refrain from meeting up with friends or families.Footnote 170
In more recent months, vaccine uptake has provided a further illustration of partisan differences. Before any vaccines were approved, a national poll by ABC News found that approximately forty percent of surveyed Republicans would be unlikely to get vaccinated for coronavirus (even if the vaccine were free); in contrast, eighty-one percent of Democrats would “definitely or probably” be vaccinated.Footnote 171 As of April 2021, thirty-one percent of U.S. adults had been fully vaccinated, but there was a “disparity in vaccination rates [that] has so far mainly broken down along political lines.”Footnote 172 Counties with a larger proportion of 2020 Trump voters had higher percentages of vaccine-hesitant people and lower rates of vaccination.Footnote 173 Compared to the national average, the rate of full vaccination in Republican-leaning counties was 5% less among older adults and 18% less among younger adults.Footnote 174
Several behavioral phenomena may help to explain these striking figures. This subsection will focus on three key phenomena: cultural cognition, motivated reasoning, and group polarization. As the discussion will show, cultural cognition might impact the way in which people develop their risk assessment of COVID-19 and how that assessment is translated into policy preferences. Motivated reasoning and group polarization then build on, and entrench, these preexisting beliefs.
Cultural cognition models of risk perception suggest that people’s beliefs about what is threatening or nonthreatening depend in part on their cultural commitments—and specifically, whether they are more hierarchical or egalitarian, and more individualistic or solidaristic.Footnote 175 Although cultural orientation is not a perfect match for conservative versus liberal political affiliation, research has demonstrated that conservatives are more likely to endorse hierarchical and individualistic values, while liberals are more likely to endorse egalitarian and solidaristic values.Footnote 176 Hierarchical and individualistic people tend to be less concerned about environmental and technological risks (e.g., global warming), yet more concerned about risks to individual autonomy or social roles (e.g., gun control).Footnote 177 Egalitarian and solidaristic people, on the other hand, tend to worry more about threats to the environment and the collective (e.g., human papilloma virus), yet worry less about giving up individual autonomy to benefit the group (e.g., vaccination mandates).Footnote 178
Beliefs about the threats of COVID-19 and lockdown policies fit these cultural cognition models. If the theory holds, people who prioritize egalitarianism and solidarity (who are more likely to be liberals), are likely to see COVID-19 as more threatening and to view public health interventions as less threatening.Footnote 179 In contrast, the theory predicts that people who prioritize hierarchy and individualism (who are more likely to be conservatives) will be predisposed to minimize the threat of COVID-19 as an environmental risk, and more averse to restrictions on individual choices. Initial findings on cultural cognition and COVID-19 are emerging, and they tend to align with these suggestions.Footnote 180 One study of more than 6000 people from the United States and elsewhere found that individualistic values on the cultural cognition model predicted lower perceived risk from COVID-19, while communitarian values predicted greater perceived risk.Footnote 181 A study of American adolescents found that greater social responsibility predicted more disinfecting behaviors and less hoarding of supplies, while those who valued their self-interest over others reported less social distancing and more hoarding.Footnote 182 An analysis of cellphone data in the United States concluded that county-level climate change skepticism predicted lower compliance with stay-at-home orders; where Democratic and Republican counties had similar levels of climate change skepticism, they reported statistically similar patterns of social distancing.Footnote 183 This suggests that cultural threat perceptions, rather than partisanship per se, were drivers of perceived threat.
Motivated reasoning is another phenomenon—or rather, a set of behavioral phenomena—that might influence the politics of COVID-19 and further the impact of cultural cognition. Motivated reasoning refers to people’s tendency to notice and interpret new information in ways that reinforce their prior beliefs, rather than doing so objectively.Footnote 184 There are a host of underlying reasons for this behavioral pattern.Footnote 185 Biased assimilation is the process by which people tend to believe new information that validates their prior beliefs, yet are inclined to dismiss new information that challenges their prior beliefs.Footnote 186 This is one reason why people tend to grow more polarized, not less so, after reading balanced information about a topic.Footnote 187 Confirmation bias is a similar process, by which people tend to seek out and process new information in ways that are favorable to their own prior beliefs.Footnote 188 The credibility heuristic also shapes information processing: people tend to accept or dismiss experts based on their perception of whether the expert is part of an ingroup or an outgroup.Footnote 189 Relatedly, people tend to overestimate the likelihood of scientific consensus on their own position,Footnote 190 and overestimate the likelihood that others agree with them (i.e., the false consensus effect).Footnote 191 Overall, the mechanisms of motivated reasoning can produce belief perseverance (hewing to irrational beliefs despite contrary evidence) and attitude polarization as information increases.Footnote 192
Early data provide some support for the role of motivated reasoning in partisanship towards the COVID-19 response in the United States. Recent polls suggest that partisan gaps in Americans’ beliefs and actions regarding the novel coronavirus are widening,Footnote 193 including gaps in public trust in medical scientists.Footnote 194 Namely, Democrats have moved toward greater confidence in scientists, while Republicans have continued to express lower and unchanged levels of trust.Footnote 195 Levels of trust in Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases and a member of the White House Coronavirus Task Force, is an illustrative example. Dr. Fauci has advised seven presidents, from both Republican and Democratic administrations.Footnote 196 In earlier stages of the pandemic, Dr. Fauci appeared at President Trump’s daily briefings and answered questions from reporters.Footnote 197 Then, after events in which Dr. Fauci appeared to contradict President Trump (and after which the President subsequently criticized him), Dr. Fauci became a divisive political figure. By mid-May 2020, only fifty-one percent of Republicans trusted Dr. Fauci as a source for coronavirus information according to a CBS News poll, while eighty-three percent of Democrats found him trustworthy.Footnote 198
Finally, group polarization may amplify the effects of motivated reasoning across opposing groups, such as political parties. Group polarization refers to the tendency of groups to arrive at a more extreme position as they deliberate, compared to the position each group member would have held if polled before group deliberation.Footnote 199 This occurs through a number of group dynamics, including the number of new arguments that people hear for each side, social influences that lead naysayers to self-censor, and the tendency of more confident people to develop more extreme views.Footnote 200 As people discuss COVID-19 with like-minded others—as people in the United States do for political matters, on social media and in the consumption of siloed news sourcesFootnote 201—group polarization could cause them to drift further apart from people in the opposing political camp.Footnote 202
Empirical evidence of the role of siloed media in COVID-19 outcomes is building. Trust in media sources about coronavirus news differs greatly between political partisans in the United States, with data showing that Democrats are far more likely than Republicans to trust national newspapers, national news networks, CNN, and MSNBC for coronavirus news, while Republicans are more likely than Democrats to trust information from Fox News.Footnote 203 More specific analyses of the effect of Fox News suggest that the network has influenced Republicans’ decisions about social distancing, in part through some news hosts’ framing of COVID-19 as benign and minor.Footnote 204 Early in the pandemic, Fox News host Sean Hannity tended to “downplay” the threat, while host Tucker Carlson (also on Fox News) described it as serious and lethal.Footnote 205 Subsequent analyses showed that Hannity viewers adopted precautionary measures later than Carlson viewers, and that this likely produced differential disease transmission rates (and, likely, death rates) among viewers: viewing Hannity was associated with thirty-four percent more COVID-19 cases by March 14, 2020, and twenty-four percent more COVID-19 deaths by March 28, 2020.Footnote 206 Other analyses have concurred, without disaggregating viewers of specific programs. One found that a one-unit rating point increase in Fox News predicted more than ten-percent reduced compliance with stay-at-home behavior.Footnote 207 Another found that viewing the network was associated with fewer social distancing behaviors and reduced purchase of prevention goods like masks and sanitizers.Footnote 208
While the phenomena reviewed in this Subsection predict growing disparities in views over time, there is a potential major countervailing force—namely, experience with COVID-19. In the multi-county survey described above, people perceived greater risk of COVID-19 after having direct experience with the illness, as well as after receiving information from family and friends.Footnote 209 Direct exposure to COVID-19 also predicts greater willingness among Americans to contribute to the international COVID-19 response, particularly among Republicans.Footnote 210 Consequently, as the virus spreads across the United States, it might also bring about greater convergence in public views regarding the risks it poses and the legal responses it demands.
* * *
This Part presented an overview of the role behavioral science played in the political debate surrounding a jurisdiction’s governmental policies vis-à-vis the COVID-19 pandemic. It reviewed several psychological phenomena that seem to have impacted this debate. The picture emerging from this Part is of a dynamic process in which public opinion towards the pandemic constantly shifts due to these phenomena, causing policymakers to both under- and overreact to the pandemic.
III. CHOOSING THE MEANS TO PROMOTE THE GOAL: NUDGES V. MANDATES
After the political leadership determines its strategic goal (i.e., suppression or mitigation), it must select the means that will be used to further this goal. This Part will examine this policy choice from a behavioral perspective. More specifically, it will consider the role of behaviorally informed modes of regulation—commonly described as nudges Footnote 211—within the regulatory response to the pandemic. It will do so while comparing nudges to the main alternative tool regulators might opt forFootnote 212: namely, mandates that are backed by sanctions.
Broadly defined, nudges are “low-cost, choice-preserving, behaviorally informed approaches to regulatory problems.”Footnote 213 Nudges do not “significantly chang[e] economic incentives”—they affect behavior without modifying prices, fines, or subsidies.Footnote 214 As research has demonstrated, regulators can often change people’s decisions by engaging in choice architecture—that is, by designing the decision-making environment such that it is likely to induce people to make decisions that the architect wishes to promote.Footnote 215 Examples of nudges include defaults that guide people towards the desired choice,Footnote 216 decision menus that control the order in which options are presented,Footnote 217 sensory cues such as pictures or ambiance that prime people to choose certain options,Footnote 218 and smart disclosures that assist people to make decisions that best serve their long-term interests.Footnote 219
A key aspect of nudges is that they preserve individual liberty. That is, they aim to guide and assist people in making their decisions while maintaining all options in the choice set.Footnote 220 This framework should be contrasted with mandates, which require or prohibit certain behaviors, and are generally backed by sanctions that are applied to those who violate them.Footnote 221 Thus, for example, traffic regulations requiring the use of a seatbelt or prohibiting exceeding a certain speed are mandates, whereas road designs that make use of people’s cognitive setup and cause them to think they are accelerating (and consequently to reduce their speed) are nudges.Footnote 222
Numerous jurisdictions have examined the possibility of putting nudges at the forefront of their regulatory response to the pandemic.Footnote 223 Such regulation would focus on providing people with clear and simple information, which would help foster social distancing, while sustaining individual choice. Examples for such measures include recommendations to stay at home, attempts to create hand washing habits, and advice regarding social interactions.Footnote 224
While countries adopted a wide range of legal responses to the pandemic, most developed economies opted for mandates rather than nudges.Footnote 225 Countries shut down significant parts of their economies and limited public gatherings.Footnote 226 In addition, broad travel restrictions were implemented.Footnote 227 International borders were closed, and stay-at-home orders were put in place.Footnote 228 Individuals infected by the virus were put in isolation, and those who were exposed to it were required to quarantine.Footnote 229 These mandates were backed by significant penalties and were vigorously enforced.Footnote 230
For numerous reasons, it would be unrealistic to expect nudges to carry the bulk of the legal response to the pandemic. This is especially true for countries that decided to adopt a suppression strategy, which aims to push transmissions of the virus within the population down to zero.Footnote 231 One problem is the lack of relevant knowledge necessary to craft concrete nudges geared towards the specific goals during the pandemic (e.g., maintaining social distance, wearing face masks, quarantining after exposure). The situation regulators faced in late 2019 and early 2020 was unprecedented, and the ability to extrapolate policies from existing research was limited. Often, when knowledge is scarce, policymakers have time to experiment with new nudges, slowly learning what works through experience.Footnote 232 Policymakers may, for example, experiment for years before they reach the optimal design of a food label.Footnote 233 This option, however, is problematic in the context of a pandemic because the virus could spread throughout the population during the time of regulatory inaction and experimentation.Footnote 234 Mandates, on the other hand, require far less information and can be deployed quickly. Once the required behavior is defined, regulators are only required to put in place an enforcement policy.
Yet, even if behavioral scientists can provide policymakers with timely proposals for concrete nudges, it is unlikely that these interventions could serve as the primary response to a pandemic. Nudges are often considered effective when researchers can detect a statistically significant change of behavior between subjects who are treated by the nudge and a control group.Footnote 235 Note, however, that statistical significance is a term of art, denoting only that the probability is 0.05 or less that one would not see the given results (e.g., differences between two groups), or results that are more extreme, assuming that groups are sampled at random.Footnote 236 Significance testing does not mean that a treatment effect was large, widespread, or clinically meaningful; statistically significant findings could indicate a large change among a small subgroup of people, or an infinitesimal change among a very large group of people.Footnote 237 In order to decide whether a policy nudge is worthwhile, the size of an effect matters too.
A recent systematic review covering 100 studies and including 317 effect sizes showed that nudges have a median relative effect size of twenty-one percent,Footnote 238 which is typically considered small.Footnote 239 This figure probably overstates the actual number given a well-known publication bias in academic journals, which favor publishing studies in which an effect was documented.Footnote 240 In fact, a recent examination of nudges implemented in the field found that their effect size was only 1.4%.Footnote 241 Furthermore, the most effective nudge that pushes the effect size upward is the default effect,Footnote 242 which arguably has fewer applications in the COVID-19 context. So, even if some nudges may prove effective, the overall results suggest that their effect size is often simply insufficient during a deadly pandemic, especially for a jurisdiction adopting a suppression strategy.Footnote 243
Finally, no matter how expertly behavioral scientists design nudges, these interventions are unlikely to work as the main regulatory response to a deadly infectious disease. Individual choices in the context of a pandemic entail significant negative externalities. Footnote 244 That is, individuals carrying the virus pose a risk not only for themselves, but also for those whom they might infect, and other people who are consequently infected further downstream.Footnote 245 Furthermore, when the healthcare system reaches capacity, any sick patient impacts the level of care that other patients receive (and in extreme situations, could result in scarcity and care denials).Footnote 246 One study estimated that the social cost associated with each additional COVID-19 infection may be as high as $576,000, whereas the private cost internalized by decision makers is only $80,000.Footnote 247
Choice-preserving regulation may be useful in cases where the regulator wishes to help people make choices that are in their own best interests. In areas such as dieting, saving for retirement, or choosing financial products, a nudge might improve the choices people make, and will therefore be embraced by those people.Footnote 248 The response to an infectious disease, however, is a collective action problem—many people might decide that it is in their own best interest to ignore the nudge, creating negative externalities that, in the case of COVID-19, will prove fatal. Consequently, the likelihood that such nudges will prevail over time, certainly among the entire population, is low.Footnote 249
IV. THE DESIRABLE ROLE OF NUDGES
The previous Part demonstrated that mandates rather than nudges should be, and in fact were, the primary legal tool utilized in the face of a major pandemic. Nudges can, however, still make useful contributions to the governmental response to COVID-19. This Part highlights the conditions in which regulators could turn to nudges, and will review some of the nudges put in place in response to the current pandemic.
A. Nudges: Second-Best Substitutes or Complements
At times, nudges might substitute mandates. Policymakers may opt to use a nudge even though welfare could be enhanced by using mandates because there are constraints that limit their ability to put an effective mandate in place. This could be the case in situations in which constitutional rules prohibit certain types of legislation. In Japan, for example, much of the country’s response to the pandemic was driven by strict constitutional restrictions that limited the government’s ability to enact mandates.Footnote 250 Consequently, the Japanese government put in place a framework of soft regulation based on nudges and requests.Footnote 251
Substitution might also arise due to political constraints, even when policymakers are legally allowed to enact mandates. If the mandate generates significant opposition, then a nudge might be a useful compromise, which could be better than doing nothing.Footnote 252 Note, however, that the availability of nudges on the political menu might undermine policymakers’ ability or motivation to push forward the first-best necessary regulation (i.e., mandates).Footnote 253 In such cases, low-cost and choice-preserving nudges might end up substituting much needed and more effective mandates, simply because they are an easier political option.Footnote 254
In the context of COVID-19, nudges functioned as a substitute in some areas that required a delicate balance between competing values. Religious institutions, for example, pose a significant transmission risk,Footnote 255 but also play a critical role in the lives of many communities. In the United States, the Supreme Court upheld early restrictions on churches and other religious institutions.Footnote 256 But several months later, the Court shifted its view and barred states including New York, Colorado, California, and New Jersey from imposing limits on religious gatherings.Footnote 257 Many states independently declined to regulate religious institutions or carved out exemptions.Footnote 258 With this backdrop, guidelines and nudges might serve as useful substitutes for mandates, helping lower the risk of transmission.Footnote 259
Alternatively, nudges can serve as complements to a regulatory regime that is based on mandates. The traditional rational-choice model predicts that punishing violators creates specific and general deterrence, which in turn reduce the level of undesirable activity.Footnote 260 According to this model, sanctions and enforcement efforts geared toward detecting violations are the key tools that policymakers have at their disposal.Footnote 261 A rich body of behavioral research suggests, however, that a wide range of additional factors impact people’s decisions whether to obey the law.Footnote 262 Issues such as social norms, subjective perceptions of probabilities, and the fairness of the legal system, all influence compliance.Footnote 263 Building on this body of research, behavioral scientists can guide policymakers with respect to the tools that may serve to bolster compliance with the mandates put in place. Thus, for example, while the payment of taxes is mandatory and is backed by a robust set of sanctions for noncompliance, policymakers could still utilize nudges to elevate the level of voluntary payment.Footnote 264
Shifting to COVID-19, many of the public health mandates imposed by regulators are self-enforcing or simple to enforce. When countries close down their own borders, public schools, or other governmental services, noncompliance is generally unavailable. Similarly, enforcing a lockdown of major businesses poses less of a challenge, since deviations are easily detected, and sanctions can be swiftly applied. In fact, aggressive measures taken by governments quickly closed down the occasional rogue private school that opened,Footnote 265 or the defiant restaurant that opened for in-house dining.Footnote 266
Other public health rules, however, are harder to enforce. Mandates relating to behaviors such as maintaining a proper distance from other people or wearing face masks in public are difficult for governments to enforce.Footnote 267 Some of these rules include exemptions that invite elaborate circumvention (e.g., taking a fish for a walk when the rules permit taking pets for walk).Footnote 268 Once limitations apply to behavior within the home, enforcement might be possible only in cases of exceptionally flagrant violations. Further, some very important forms of behavior, such as hand washing, simply cannot be regulated effectively by the state. While governments may try to bolster deterrence by escalating sanctions, such a policy has significant limitations.Footnote 269 Thus, policymakers might wish to make use of insights from behavioral economics to complement mandates and bolster voluntary compliance.
B. Using Nudges in the COVID-19 Response
After highlighting the functions of nudges within a regulatory framework, this Subsection reviews several examples in which behavioral insights contributed to the legal response to COVID-19. As noted above,Footnote 270 the claims in this Subsection are theory-driven, but speculative, and should therefore be read with caution. The goal of this review is to open and frame a critical discussion that will be enriched as scientists identify and test COVID-19 nudges over time.
1. Behaviorally Informed Messaging
Public messaging—communicating with the general public—is one way to promote compliance using psychological mechanisms rather than incentives. Behavioral insights can help policymakers convey their message more effectively. Just as firms competing in the market or political candidates battling a campaign use psychological insights when designing their messages,Footnote 271 so should regulators during a pandemic. Fields such as marketing, communications, and organizational behavior have made long strides in this area, but we contribute a few insights here from behavioral economics.
Since human attention is a scarce resource, policymakers face a challenge if they want their messages to be noticed, to be understood, and to elicit the desired response. At the broadest level, much like in other contexts of mass communication, effective messages must be “concrete, straightforward, simple, meaningful, timely, and salient.”Footnote 272 This very general framework has been successfully applied in areas such as energy efficiency and preventative health care.Footnote 273
Numerous leaders have used behaviorally informed messaging during the pandemic. In New York state, for example, the message: “Stay Home, Stop the Spread, Save Lives” was used consistently.Footnote 274 In the United Kingdom, a similar message that incorporated a reference to nationally cherished institution—“Stay Home, Protect the NHS, Save Lives”—was the centerpiece of governmental communications.Footnote 275 These messages are short, simple, and convey concretely what is required of people (i.e., stay home) and why it is required (i.e., support health care workers and save lives). Consequently, they have been described as “one of the most successful communications in modern political history.”Footnote 276 Furthermore, this simple wording was often coupled with a visual design that was geared to make it more vivid, which likely bolstered the impact of the message.Footnote 277 In the United Kingdom, for example, the message appeared in front of the Prime Minister’s podium during his press briefings, and the eye-catching design included a yellow background, black lettering, and red arrows.Footnote 278
Behavioral insights could also offer guidance about how to frame governmental messages aimed at boosting compliance. A case in point for the COVID-19 response is whether to emphasize people’s self-interest or societal interests when trying to promote compliance with social distancing rules. From a rational choice perspective, this is a no-brainer. According to the assumptions of the rational choice model, people are expected to care foremost about themselves rather than about others.Footnote 279 Thus, the most effective message should focus on the benefits associated with not catching the virus, rather than the benefits tied to not spreading it to others. A large body of behavioral studies, however, has demonstrated that people’s behavior is influenced by pro-social motivations.Footnote 280 People cooperate with others voluntarily in non-cooperative games such as the prisoners’ dilemma,Footnote 281 share resources with others in an egalitarian fashion,Footnote 282 and willingly forgo income to punish people who deviate from such pro-social norms.Footnote 283 This body of work suggests that using pro-social messaging might be an effective way to promote compliance with COVID-19 restrictions. This may be especially true with respect to the younger population, which faces significantly lower personal risk in the case of illness.Footnote 284
Preliminary studies have confirmed the effectiveness of pro-social messaging for promoting precautions against COVID-19.Footnote 285 One such study found that in the early stages of the pandemic, a public service announcement focusing on public (other-regarding) benefits was more effective than a message focusing on personal (self-regarding) benefits, and no less effective than a message focusing on both.Footnote 286 A second identical experiment conducted later during the pandemic showed that the different messages had similar effects, but still suggested that the perceived threat of COVID-19 to the public predicted prevention intentions more strongly than the perceived threat to the individual decision maker.Footnote 287
Another psychological dimension that could help bolster compliance with public health regulation is the identifiability of the victims. Psychological literature shows that people put more weight on the value of an identifiable life as opposed to an unidentifiable statistical life.Footnote 288 Merely adding a picture and a name to a message could significantly impact people’s willingness to engage in prosocial behavior.Footnote 289 This is why people will agree to spend tremendous amounts of money to save an identifiable person in peril, while failing to invest in preventative measures that would save many more (unknown) lives.Footnote 290 Charities routinely construct their messaging based on this insight, and focus their fundraising campaign on an individual story rather than on the broader picture.Footnote 291
These findings suggest that humanizing the messages calling for public health precautions could improve willingness to comply. Thus, the effectiveness of messages regarding protecting health care workers or saving the lives of at-risk populations could be bolstered by incorporating names and pictures of individual clinicians or patients. One preliminary study conducted in Ireland demonstrated that when experimenters led subjects to think of concrete people as potential victims of coronavirus infection, subjects were more willing to adopt some precautions.Footnote 292 Beyond simply naming individuals, “narrative framing” approaches—telling stories with identifiable characters to illustrate important information—function by eliciting the feeling of relationships with characters, reducing negative cognitive reactions by eliciting a “pleasurable mental state,” and increasing the realism of information.Footnote 293 These mechanisms suggest that more detailed individual stories with real or relatable characters may be effective for communicating COVID-19 public health information. Narrative approaches may also reduce culturally polarized responses among listeners.Footnote 294
Finally, policymakers in later stages of the pandemic may adopt messages that capitalize on the sunk costs effect, a phenomenon that stems from loss aversion.Footnote 295 The sunk costs effect occurs when people who have made past investments in a project are biased towards investing more (even if the project is no longer worthwhile).Footnote 296 The more significant people believe their prior sacrifices were, the stronger this effect becomes.Footnote 297
Where it is necessary to prolong or reinstate costly measures like lockdowns, this insight may improve compliance. Arguments that invoke the public’s fear of losing or wasting the progress they made during the lockdown might prove persuasive. In fact, paradoxically, the costlier lockdowns have been, the more persuasive sunk costs arguments are likely to be in maintaining them over a long period of time. For example, Scotland’s first minister Nicola Sturgeon used sunk costs messaging to ask the public to continue staying home: “We mustn’t squander our progress by easing up too soon,”Footnote 298 and “[W]e are asking you to stick with lockdown for a bit longer—so that we can consolidate our progress, not jeopardize it.”Footnote 299 Officials elsewhere have used similar rhetoric, highlighting sunk costs to bolster support for ongoing restrictions.Footnote 300
2. Harnessing Social Norms
A separate type of messaging that could bolster compliance relates to social norms. A large body of survey and field experiments have shown that people’s behavior is unconsciously, but strongly, influenced by what they believe others are doing—more so than by other factors, such as people’s own opinion about the desirability of a given behavior.Footnote 301 For example, people tend to contribute more to charity,Footnote 302 conserve energy,Footnote 303 and pay taxes,Footnote 304 because of the social elements in play rather than because of material factors (e.g., fines).Footnote 305 A key finding in the social norms literature is that people are conditional cooperators. Footnote 306 That is, people are willing to engage in costly pro-social behavior if they know that other members of the community are reciprocating.Footnote 307 This insight has highlighted two dimensions that affect social interventions. First, behavior should be observable, so people can know that others are cooperating, and so that they may sanction those who do not cooperate.Footnote 308 For example, listing the names of those who contribute to the public good (rather than listing anonymous ID numbers) was shown to promote cooperation.Footnote 309 Second, providing people with information about a compliance norm will elevate their willingness to comply.Footnote 310 For instance, hotel guests were nine percent more likely to reuse their towel if told “Almost seventy-five percent of guests who are asked to participate in our new resource savings program do help by using their towels more than once,” as opposed to a generic message “Help Save the Environment.”Footnote 311
Social norms could also play a role in promoting compliance with COVID-19 precautions.Footnote 312 Preliminary empirical findings from several countries suggest that the perceived compliance of others corresponds with greater self-reported compliance with COVID-19 prevention rules.Footnote 313 These studies further show that the traditional factors of deterrence theory—the probability of detection and the sanction if caught—may not play a significant role in people’s compliance decisions.Footnote 314 These findings suggest that policymakers should convey the message that compliance with precautions is already widespread.Footnote 315 This message could be relayed by sharing images of compliance (e.g., social distancing at a local grocery store) and data (e.g., usage of public transportation statistics) that demonstrate conformity with the norm.Footnote 316 Conversely, when facing flagrant violations of the rules, policymakers should attempt to contain those violations quietly,Footnote 317 rather than expressing their rage on social media as some have done.Footnote 318 In Japan, for example, an initiative to shame pachinko parlors (i.e., shops that offer a form of gambling that is a mixture of pinball and slots, and that tend to draw large crowds), which remained open despite a non-binding call to close, was counterproductive because it drew attention to violators and attracted consumers to them.Footnote 319
Social norms and conditional cooperation can also guide the strategic decision of whether to lock down the economy. At the outset of the pandemic, policymakers’ goal was not to achieve change in slow incremental steps, but rather to bring about a swift and immediate change in behavior. To this end, the lockdown itself, along with the imagery that it created, may have facilitated a quick shift in norms. Observing landmarks such as Times Square, Trevi Fountain, the Eiffel Tower, and the Great Wall stand empty, carries a powerful message that business is not as usual.Footnote 320 This, in turn, could help facilitate a speedy shift in social norms by vividly (and saliently) illustrating that the vast majority of the public is adhering to a new set of pandemic-related rules. The Dutch Prime Minster used this point when he stated in March that “[m]ost of us comply with the measures, almost all do so … . [W]hen you see the empty streets, the empty offices, the empty highways, the empty train platforms, I think the message has landed with many people in the country, and many comply with the measures.”Footnote 321
Finally, leaders (both political and social) can play a central role in fostering (or, regretfully, undermining) cooperative norms. Social norms scholarship often discusses “norm entrepreneurs.”Footnote 322 These individuals function as social focal points and can powerfully shift social norms.Footnote 323 More specifically, they can do so by: “(a) signalling their own commitment to change, (b) creating coalitions, (c) making defiance of the norms seem or be less [or more] costly, and (d) making compliance with new norms seem or be more [or less] beneficial.”Footnote 324
In recent years, behavioral economists have developed this concept, and documented empirically how leadership can elevate the level of cooperation in public good experiments.Footnote 325 The paradigmatic design of such studies requires designated leaders to make a contribution to the public good prior to other players in the game, thus allowing them to lead by example.Footnote 326 In one such study conducted in rural Bolivia, local leaders exerted a significant influence over voluntary contributions to a public resource, even without the ability to monitor, sanction, or coerce.Footnote 327 More concretely, adding an elected leader to the group increased total contributions by approximately twenty percent.Footnote 328 Evidently, by setting a positive example, leaders can reassure members of the community that others will cooperate, and thus facilitate conditional cooperation.
Shifting back to COVID-19, several high-ranking leaders have conspicuously violated social distancing norms. In the United States, President Trump repeatedly refused to wear a face mask,Footnote 329 and Vice President Pence similarly visited patients and took pictures with campaign staff unmasked.Footnote 330 In Israel, Prime Minster Netanyahu violated public health directives and hosted his son in his house.Footnote 331 In the United Kingdom, Professor Ferguson, one of the nation’s leading epidemiologists who participated in crafting local COVID-19 policies, was caught violating the lockdown to meet with his lover.Footnote 332 The list goes on and on.Footnote 333
The behavioral findings on social norms and conditional cooperation suggest that such behavior might undermine compliance with COVID-19 related regulation.Footnote 334 One study from Brazil, for example, estimates that President Jair Bolsonaro’s participation in a demonstration defying public health regulations in March 2020 brought about a decrease in social distancing and an increase in COVID-19 cases in municipalities with high concentrations of his supporters.Footnote 335 Given the seemingly diminished impact of deterrence considerations on people’s COVID-19 prevention decisions, social norms may be acutely important for compliance. Global leaders should realize that with great power comes great responsibility to lead by example—and to adhere to the new norms.
3. Addressing Motivated Reasoning and Partisanship
A central feature of the public response to COVID-19, particularly in the United States, is the political polarization described above.Footnote 336 Behavioral research can also help policymakers address cultural cognition, motivated reasoning, and group polarization through scientifically grounded debiasing approaches. These mechanisms are difficult to shift, and are amplified, not decreased, with greater information.Footnote 337 But research in this area also holds clues for mitigating partisan responses to scientific information.
Cultural cognition research in particular has yielded insights that could boost the impacts of messaging and public education. One strategy is to increase the public’s exposure not only to information, but to information from speakers that are perceived to share the listeners’ values. When people see their disfavored arguments expressed by someone who shares their values, and where they see their favored arguments expressed by someone who does not share their values, listeners display less pronounced group polarization in their responses.Footnote 338 Although speakers with such mismatched views may be difficult to identify, this research suggests that they may be effective conduits for information in a culturally polarized environment.Footnote 339 Research in the COVID-19 context bears out this insight; as noted above, viewers of the Tucker Carlson program on Fox News saw someone of their own cultural orientation taking the threat of the novel coronavirus seriously, which led to increased adoption of social distancing behavior.Footnote 340 One analysis of United States governors’ messaging on social media found that stay-at-home cues from Republican governors (which promoted a policy that was unpopular among national Republican leaders) were significantly more effective than cues from Democratic governors, in large part because of an “especially responsive” effect in Democratic-leaning counties.Footnote 341 In comparison, as the public’s perception of Dr. Fauci altered, aligning him with more Democratic-linked values, he became a less effective source of information for conservative communities.Footnote 342
A second strategy that may make people more responsive to unwelcome information is to use arguments that affirm or align with individuals’ cultural priors.Footnote 343 The long-running “Don’t Mess with Texas” campaign for reducing litter provides one such example, promoting non-littering as congruent with residents’ widespread state pride (and reinforced through social norms messaging featuring images of popular cultural figures).Footnote 344 Some COVID-19 response efforts have harnessed similar messaging, such as the #MaskUpHoosiers advertising and social campaign in Indiana, which appeals to state pride.Footnote 345 But where policymakers seek to persuade people who particularly value individualism, which is associated with lower risk perceptions of COVID-19,Footnote 346 arguments that emphasize protecting oneself and one’s own family may be more effective.Footnote 347 Messaging campaigns can combine these with images that have cultural resonance. For example, the Oregon mask PSA contains language such as “A Mask Should Not Be a Sign of Weakness” and displays “A Barrier to Protect You” while showing images of a mask in camouflage print.Footnote 348
4. Choice Architecture
Aside from informing messaging, the cultivation of social norms, and efforts to reduce motivated reasoning, behavioral research could also guide the design of the decision-making environment to promote compliance. Choice architecture studies have demonstrated that nuanced alterations in the decision-making environment can significantly sway subjects’ decisions.Footnote 349 The order in which different kinds of food are presented in cafeterias, the structure of forms, and the design of highways have all been guided by behavioral insights geared towards bringing about desirable outcomes.Footnote 350
Policymakers could use choice architecture nudges to facilitate compliance with COVID-19 rules. For example, floor markings that indicate where people should stand in a crowded area nudge people to sustain proper social distance. Numerous regulators have mandated such markings as part of the safety measures required by businesses opened to the public.Footnote 351 Others have used similar methods to promote social distancing in public parks. In response to growing evidence of social distancing non-compliance in popular public parks, New York and San Francisco began to mark circles on the grass creating boundaries between park-goers.Footnote 352 This method was even used to facilitate safe demonstrations during the pandemic. In Tel Aviv, the city marked its entire central square, which is often used for large demonstrations, with markers indicating where people may stand while maintaining social distance.Footnote 353 This allowed for demonstrations with thousands of people to proceed safely during the pandemic.Footnote 354
Incorporating social distancing into the landscape has two major advantages from a behavioral perspective. First, and perhaps most obvious, is that it makes compliance easy for those who already wish to obey the law. The markings function as a simple instruction that all people can follow. They alleviate the burden of constantly estimating (and maintaining) a six-foot distance from others. This is important because studies have indicated that ease of compliance is a key determinant in compliance decisions.Footnote 355
Space markers can also bolster the informal enforcement of social distancing norms by peers. Someone sitting in the park might feel uncomfortable confronting another person who sits a couple of feet away from them. Yet, once a circle on the ground marks a territory, the person sitting in the circle first may view themselves as the “possessor” of the circle. A wide body of game theory literature supported by experimental studies has shown that possession plays a central role in people’s willingness to confront others to protect assets (and the tendency of non-possessors to avoid such confrontations).Footnote 356 Thus, creating areas of possession within the public space might encourage private enforcement of social distancing, which in turn will reinforce the social norm.
Behavioral insights could also be used to shore up compliance among businesses. As different sectors of the economy reopen (or, for essential businesses, remain open), they are subject to new regulations that minimize the risk of transmission. Consequently, business owners might find themselves facing a web of intricate new rules covering issues such as the distance between tables at restaurants, the installation of protective equipment at registers, cleaning protocols, maximal capacity, and employee screening.Footnote 357 Even for business owners with the best intentions, adhering to these new regulations could pose a serious challenge.
One measure from the choice architecture toolkit that could help elevate business compliance with COVID-19 regulations are checklists.Footnote 358 Mostly studied in the context of medical decisions, checklists have been shown to be an effective tool that can assist decision makers.Footnote 359 By breaking down a complex decision into smaller simpler steps and reminding decision makers of the steps they are required to take, checklists may improve the quality of decisions.Footnote 360 Checklists that enumerate all of the measures that a business is required to take (either daily or at the point of reopening, depending on the context), could assist business owners to deal with an unfamiliar complex situation.Footnote 361 In California, for example, regulators have published numerous industry-specific checklists that are geared to ease compliance.Footnote 362
Regulators could take checklists further by integrating them with compliance pledges. Research in behavioral ethics has demonstrated that oaths and pledges tend to reduce people’s tendency to cheat.Footnote 363 More recently, Eyal Pe’er and Yuval Feldman extended this finding to a setting closer to a regulatory setting involving mandates.Footnote 364 More specifically, they demonstrated that pledges could complement fines: while either a fine or a pledge separately reduced cheating, combining the two reduced cheating even more.Footnote 365 Thus, adding a personal declaration, in which the business owner attests to adhering to a set of instructions on a checklist, might be a simple and cheap way to promote compliance.Footnote 366 Private entities have also made use of such pledge-nudges as part of their reopening process. At Columbia University, for example, members of the university are asked to declare their health status daily before entering the campus,Footnote 367 and at the University of Illinois, community members are asked to sign a community pledge that delineates their commitment to behaviors promoting public health.Footnote 368
Finally, choice architecture could attempt to strengthen the influence of beneficial social norms. For example, hand washing could be performed at highly visible places (e.g., the entrance to a school) to raise observability and mutual enforcement. When observation is not possible (e.g., hand washing in the restroom), adding specific visual cues to the environment might help; for example, numerous randomized field experiments have shown that posters of eyes can increase pro-social behavior.Footnote 369 One such study demonstrated that the image of stern-looking middle aged male eyes increased hand cleaning at a hospital from fifteen percent to about thirty-three percent.Footnote 370 Alternately, messaging explaining the importance of hand washing or highlighting social norms could be introduced into the decision making environment.Footnote 371
As noted at the outset, the measures reviewed in this Subsection are not meant to be an exhaustive list of the behaviorally informed interventions that can support the regulatory response to a pandemic. Rather, they merely illustrate the constructive role that behavioral science could play in designing a regulatory environment that will foster compliance.
V. CONCLUSION
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.Footnote 372
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.”Footnote 373 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.Footnote 374
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.
