Utilizing Behavioral Insights (Without Romance): An Inquiry into the Choice Architecture of Public Decision-Making.

• Author: Smith, Adam C.
• Position: Evaluating Nudge: A Decade of Libertarian Paternalism

1. INTRODUCTION

   It should be no surprise to learn that humans behave in ways that are far from optimal. Be it from poor planning or untoward circumstance, we rarely, if ever, experience the idyllic fantasy of optimality in our various day-to-day activities. Or as David Byrne of the Talking Heads once sang:

   Heaven, Heaven is a place A place where nothing Nothing ever happens. (1) Economists have spent decades investigating just how day-to-day choices can be improved. The older welfare economics research program, for example, sought to improve competition in the marketplace by correcting perceived market failures, with the intended result of reducing prices and improving product quality. (2) The Chicago school of economics, on the other hand, tended to emphasize the role of fiscal policy and regulation in creating bad incentives and misallocating market resources. (3) Smaller and smarter regulation could therefore unleash dormant market potential. Despite their different orientations, both of these approaches rely on the canons of neoclassical price theory and highlight institutional factors as the source of observed shortcomings. Individuals choose optimally within the constraints produced by prevailing institutions, and thus undesirable outcomes could easily be avoided by "getting the rules right."

   In a different vein, starting with Nobel laureate Daniel Kahneman and his co-author Amos Tversky, behavioral economics has exposed dozens of behavioral "anomalies" through extensive laboratory investigation of behavior. (4) These anomalies constitute observed behavioral deviations from the predictions of neoclassical economic theory, and behavioral economists have sought to explain the sources of such anomalous choices by identifying and cataloging a variety of cognitive limitations and psychological biases. Building on these findings, behavioral economists have even begun to export their psychological findings into policy prescriptions. (5) This research program--led by such luminaries as Richard Thaler and Cass Sunstein and known as behavioral law and economics--seeks to apply the insights gleaned from studies of human behavior to improve existing institutions by designing rules to compensate for (or take advantage of) people's various biases. (6) Given that observed choices are inconsistent with neoclassical theory, behavioral economists argue that "getting the rules right" with respect to neoclassical decision-makers will be insufficient to generate desirable outcomes. If people are not rational to begin with, in the neoclassical sense of the word, then solutions designed for rational agents will not necessarily lead to desired outcomes.

   Thaler et al. provide a cogent outline of how we, as observers, might conceive of this dilemma. (7) Their phrase "choice architecture" encapsulates the notion that choice itself is affected by the context in which it is made. Providing one set of incentives elicits certain responses, even when the actor is unaware of how they are being affected. Developing better choice architecture, defined as that which allows for optimal decision-making, could potentially improve choice outcomes. While this choice architecture can be manipulated through a variety of means, it is often policy prescription through the public sector that is proposed by behavioral economists.

   This has led to the creation of several public agencies, such as the Behavioural Insights Team (8) in the United Kingdom and the Consumer Financial Protection Bureau (9) in the United States. Furthermore, an executive order in September 2015 signed by President Obama created a new Social and Behavioral Science Team mandated with the task of combing regulatory and other public activities for opportunities to improve choice architecture. (10) Clearly, public policy guided by the insights of behavioral economics is on the rise. (11)

   But as Boettke et al. indicate, this framework puts the cart before the horse in prescribing policy purely due to anomalous behavior. (12) They show how behavioral approaches resemble previous efforts to curtail market activity based upon deviations from theoretically optimal conditions; they further argue that finding deviations from a theoretical optimum does not in and of itself justify market intervention. A variety of obstacles lie in the way between theory and practice. Coordination failures, third-party influence (or intervention), poor institutions, corruption, and simple unknowns all represent realistic considerations that any policymaker must anticipate. (13) Without understanding the nested context in which their insights will be embedded, theorists risk encouraging activity that little resembles what they are after.

   These considerations revolve around the idea that public actors themselves act within a certain choice architecture, which can very well interfere with improving market outcomes. Thus, there is a "public choice architecture" to be considered alongside the "private choice architecture" that is the focus of behavioral law and economics. (14) Put another way, behavioral economists cannot assume away the burdens of the political process. Desiring a simple, clean application of behavioral insights and attaining this through the political process are two very different things. Or as Mullane and Sheffrin put it, "It is typically easier to draw conclusions as to what behavioral tendencies caused policies to have certain outcomes than to demonstrate that these behavioral tendencies can be effectively used to create desired outcomes through their implementation in policy design." (15)

   This Article addresses this tension by organizing how we might conceive of improving choices through behavioral-minded policy while incorporating standard public choice considerations. Public choice economists have argued for decades that political actors are susceptible to incentives just like the rest of us, and as the public choice program has emphasized, in some cases, these incentives cause political decision-makers to act against the public interest. (16) What seems implicit in many behavioral policy proposals is that either (1) the regulators are not themselves subject to the limitations and biases they aim to combat or (2) that knowledge of the biases will be sufficient to mute their effects. (17) The first assumption is surely unjustified, and as for the second, informing regulators about their own behavioral biases will do little if not aligned with the proper institutional incentives. After all, if people are prone to bias in their own lives, it is safe to assume that people will be equally, if not more, prone to bias when dealing in other people's lives.

   Let us be clear. To the extent that behavioral economics identifies consistent and predictable patterns in the way individuals make their decisions, it offers the theoretical potential to improve decision-making and policy outcomes by tailoring policies and institutions to human psychology. In addition, President Obama's executive order now makes behavioral considerations the law of the land in guiding regulatory policy in the United States. (18) Neverthe-less, successful implementation of any policy prescription requires a detailed knowledge of the existing political and market institutions and the resulting incentive structure through which any behavioral remedy would ultimately have to pass. Hence, careful consideration of the accompanying public choice architecture is surely warranted.

   This Article is organized as follows. I first present the behavioral approach as a means to overcome so-called "behavioral market failures." I then justify the need for public choice underpinnings to behavioral policies if these failures are to be addressed in practice. I show how consideration of political institutions, a crucial component to any policy prescription, has largely been left to others, as behavioral economists focus on correcting biases in an institution-less vacuum. Using the contributions of James Buchanan and Elinor Ostrom, I then argue that public choice insights can add to behavioral policy initiatives and further show that without these public choice guidelines, behavioral policies are unlikely to attain the desired ends of behavioral theorists. I demonstrate this latter concern by comparing the U.S. Consumer Financial Protection Bureau to the U.K. Behavioural Insights Team, both largely motivated by behavioral economics yet very different in practice and outcome. I conclude by explaining the need for behavioral economists to incorporate an accompanying public choice architecture to the improvement of its private choice counterpart.

2. THE NEED TO NUDGE

   Before delving into the role of public choice architecture in improving private choices, it is prudent to examine why private choices need correcting in the first place. Behavioral economists have discovered a wide variety of biases that people are prone to display in the laboratory. The original experiments by Tversky and Kahneman and Kahneman and Tversky found a number of behavioral patterns that were difficult to reconcile with neoclassical theory. (19) For example, one prominent finding was that losses loomed larger for their subjects than corresponding gains, a pattern of behavior that came to be known as loss aversion and closely tied to the notion of an endowment effect. (20) Thaler popularized these findings by couching them in consumer theory, (21) later importing them into mainstream economic conversations through a regular feature in the Journal of Economics Perspectives. (22)

   In a replication of the classic Tversky and Kahneman experiments, this time with actual monetary payments, Laury and Holt reported that subjects were still averse to losses, even when addressed through multiple treatment effects, such as higher payouts and using other demographics than students as their laboratory subjects. (23) The authors concurred that these framing effects led subjects...