Présentation PowerPoint - Just

Behavioural Regulation Alberto Alemanno HEC Paris NYU School of Law

our understanding of regulation is set to change as a result of behavioural sciences involve the systematic analysis and investigation

of human behaviour through controlled and observation. how humans actually behave (when they make choices)

humans are not but

Rational Irrational Reflective

Intuitive Impassive

Emotional Why this matters for policymakers?

a few illustrations of insights from behavioural research 1. framing

around 70% 90% OK around 35%

10% SIDE EFFECTS even small apparently insignificant details

can have major impact on peoples behaviour 1. framing

The location of food items in a cafeteria produce some unexpected impact i.e.

You are able to increase/decrease the consumption of many items by as much as 25%

lesson learned people influenced by how information is framed choices not affected by properties but frame context matters

2. the power of inertia lesson learned Automatic enrollment more participation

Inertia means default matters 3. Social influence + 25%

but also Anchoring - tendency to rely too heavily on one piece of information when making decisions Loss aversion/Endowment effect A loss from the

status quo perceived as more undesiderable than a gain Group polarization/Confirmation bias - to favor information that confirms preconceptions regardless of whether the information is true Zero-risk bias preference for reducing a small risk to

zero over a greater reduction in a larger risk Informational cascades Choice and information overload Lesson learned

how actually people make choices? an alternative view of human agent

of utmost importance for policymakers success of policymaking depends on understanding of peoples behaviour

yet despite failure to predict peoples behaviour little efforts at understanding behaviour in

policy circles. Why so? while behavioral research demonstrates the

extent and limits of rational action, it does not provide regulators with a ready-made framework for incorporating its insights into policy making

generally no formal recognition timid use of behavioural research lack of systematic integration in policymaking

avantgarde EO 13563 June 2012 where relevant, feasible, and consistent with

regulatory objectiveseach agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. These approaches include warnings, appropriate default rules, and

disclosure requirements as well as provision of information to the public in a form that is clear and intelligible. Randomised

controlled trials (RCTs) Random allocation to groups RCT is an experimental design which involves random allocation of participants, either to an

experimental group which receives some form of treatment or intervention, or to a control group which receives no such special treatment or intervention.

experimental group control group Consumer Rights Regulation

Article 22 Additional payments Before the consumer is bound by the contract or offer, the trader shall seek the express consent of the consumer to any

extra payment in addition to the remuneration agreed upon for the traders main contractual obligation. If the trader has not obtained the consumers express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment, the consumer

shall be entitled to reimbursement of this payment. to address power of inertia Distance Selling Directive

Cooling-off period of 15 days myopia/impulse buying web screen ballot-box

encourages active choice of preferred browsers, and implicitly removes the impact of default You limit the ability of operators to leverage on cognitive biases (debiasing through law)

but. also possible to positively use them Consumer Information Regulation (look for better image in terms of definition)

same field of vision tabular format Environmental Labelling

19.12.2012 A nudge?

The features of Behavioural Regulation The appeal

Conventional Regulation Behavioural Regulation Reduce the options:

limits choice Changes the environment of choice: choice-preserving

Rests on the assumption that people behave rationally Rests on the assumption that people conditioned

Top-down: requires bureaucratic oversight Bottom-up:

less funding Evidence-based (real) Evidence-based (laboratorysetting)

Adversial to the industry Cooperative with the industry

The flaws Legitimacy Effectiveness Design

Legality Legitimacy Effectiveness Design

Legality legitimacy how comfortable citizens are with having experts and bureaucrats designing policies limiting the

exercise of their individual autonomy? Response: 1. choice-preserving 2. neutral settings do not exist

Legitimacy Effectiveness Design Legality

Once we accept it How we design behavioural-informed regulation?

EO 13563 June 2012 where relevant, feasible, and consistent with regulatory objectiveseach agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of

choice for the public. These approaches include warnings, appropriate default rules, and disclosure requirements as well as provision of information to the public in a form that is clear and intelligible.

privileged tool Impact Assessment prospective analysis of

ECONOMIC SOCIAL ENVIRONMENTAL impacts EUROPEAN COMMISSION: Guardian of the EU Treaties;

Promotes the EU interest; Monopoly of legislative initiative EUROPEAN PARLIAMENT Co-legislator, representing EU

population COUNCIL OF MINISTERS: Co-legislator, representing Member States

governments European Court of Justice Interprets EU legislation What is regulatory Impact Assessment

Impact assessment is performed for all new proposals for legislation and for some other major policy initiatives. IA is embedded

within a framework for policy-making Definition of objectives Comparison

and analysis of options Developt of options

Monitoring & evaluation

Conducted in accordance with IA Guidelines behavioural impact - design policy options (e.g. a behaviourally-informed options)

- road-test policy intervention (e.g. efficiency ? compliance rate?) in so doing should be able to interact with network of

national, local and international actors experiencing behavioural intervention across the EU and beyond Legitimacy

Effectiveness Design Legality legality

Are public administrations empowered to manipulate/play on the cognitive framework of their citizens? Is our legal system ready for it?

As nature of public action shifts from coercion to persuasion checks & balances must adapt

behavioural regulation is based on invisible design-based interventions aimed at interfering with the private space of individuals

whose legal effects difficult to determine and increasingly personalised What is at stake Freedom of expression

Privacy: right to informational self-determination Principle of legality Principle of impartiality

Judicial review and behavioural informed regulation regardless of what you think,

a new principle enlightening regulation you should

regulate how people behave not how they are assumed to behave. Thank you for your attention!

more at www.albertoalemanno.eu Bibliography by A. Alemanno

Nudging Legally On the Checks and Balances of Behavioural Regulation, INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW, 2014 (with A. Spina). Nudging Healthy Lifestyles Informing Regulatory Governance with Behavioural Research, EUROPEAN

JOURNAL OF RISK REGULATION, Vol. 3, No. 1, January 2012 (with Amir, On and Bovens, Luc and Burgess, Adam and Lobel, Orly and Whyte, Kyle Powys and Selinger, Evan).

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