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39 Yale J. on Reg. 1274 (2022)
Democratizing Behavioral Economics

handle is hein.journals/yjor39 and id is 1283 raw text is: Democratizing Behavioral Economics

Zachary Liscow & Daniel Markovitst
Behavioral law and economics (BLE') arising from the insight that
people    make   recognizable,   systematic   mistakes  has   revolutionized
policymaking. For example, in governments around the world, including the US,
teams of experts seek to harness these insights, promising to do things like
increase retirement savings. But there is a problem: economic experts do not
look or think like the rest of the population. Their demographics and policy views
are deeply unrepresentative.
This would be less troubling if the experts were merely helping people
pursue the behavior that the people themselves would undertake, as was the case
in traditional law and economics. However, the whole point of behavioral
economics is that such behavior is often not in people's interest. Rather, in
making judgments about the right policy, BLE has erected a new, shaky
structure, based on ad hoc and often unstated normative assumptions. The result
risks merely enacting the policy preferences (or biases) of unrepresentative
experts and thereby distorting policymaking.
We propose a new approach       democratic BLE    in which behavioral
economists, rather than dictating what the right policy or action is, instead
inform representative samples of ordinary people about the evidence, including
specifically about their own behavioral biases, and let them decide for
themselves. Those decisions, rather than experts' opinions alone, then inform
policymakers. Our approach harnesses the insights of behavioral economics, but
in a way that lets the people themselves, rather than the behavioral expert, be
the arbiter of the good life.
t   Yale Law School; zachary.liscow@yale.edu, daniel.markovits@yale.edu. Thanks to Jason
Abaluck, Anne Alstott, Oren Bar-Gill, Ryan Bubb, Justin Driver, Lee Fennell, Ray Fisman, Jacob Goldin,
Andrew Hayashi, Christine Jolls, Shachar Kariv, Max Kasy, Daryl Levinson, Jeff Rachlinski, Sarath
Sanga, Alan Schwartz, Cass Sunstein, Josh Teitelbaum, Kristen Underhill, Glen Weyl, Gui Woolston, and
participants in workshops at Boston University Law School, Cornell Law School, ETH Zurich, the
University of Hamburg Institute for Law and Economics, and Yale Law School for helpful comments and
to Emily Caputo, Audrey Cheng, Mia Dana, David Herman, Eugene Kim, and Sherry Tanious for
outstanding research assistance.


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