Biasing, Debiasing, and the Law

Abstract

In this chapter, we build on the existing literature on the use of legal strategies for addressing problems of biased judgment and behavior, exploring how heuristics and biases may be exploited to foster efficiency in the presence of other incentive alignment problems. We also introduce two new categories: the hitherto unnoticed counterparts to debiasing and insulating strategies, which we will call “benevolent biasing,” and “cognitive leveraging” strategies.

It's Now Or Never! Using Deadlines as Nudges

“…Furthermore, whereas defaults may be described as manipulatively using one cognitive bias (the omission bias) to counteract other biases, deadlines are more of a debiasing technique (on the distinction between “debiasing” and “benevolent biasing,” see Pi, Parisi, and Luppi ). A deadline corrects the erroneous perception that an omission is not a choice, thus leaving all options open.…”

The power of public choice in law and economics

“…Thus, the psychological origin of the bias toward optimism is believing that one's own actions are free from fault, or, in a word, self-righteousness causes optimism" (p. 109). The order in which jurors express the views can also affect outcomes (Pi et al, 2014). For an argument that laws devised to prevent cognitive errors and misjudgments prevent learning see Klick and Mitchell (2006) and Ulen (2014).…”

“…Thus, the psychological origin of the bias toward optimism is believing that one's own actions are free from fault, or, in a word, self‐righteousness causes optimism” (p. 109). The order in which jurors express the views can also affect outcomes (Pi et al., 2014).…”

Debiasing regulators

“…The following sub-sections argue that the decades-old doctrinal structure of federal administrative common law, as it currently stands, exhibits many behaviorally sensible characteristics which are conducive to ‘debiasing’, the process through which biased actors are made unbiased ones (Pi et al, 2014: 153). The project of debiasing through law rests on the assumption that the procedural and substantive aspects of law can be structured to tackle bounded rationality head-on, assisting actors to reduce or eliminate biases and heuristics (Jolls, 2009).…”

“…Debiasing, unlike the alternative BLE technique of insulation, does not foreclose any of the choices available to decision makers; it ventures to eliminate nothing but bias (Pi et al, 2014). The purposing of hard look review to be a debiasing tool is evident in the Supreme Court’s stricture that the scope of review ‘is limited to determining whether [the agency decisions] are unsupported by substantial evidence or are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’.…”