The Yale Law Journal

May 2019

Beyond Nudging: Debiasing Consumers Through Mixed Framing

Law and EconomicsConsumer LawFirst Amendment

abstract. The consumer-protection literature can be divided into two camps: laissez-faire libertarianism and paternalism. Paternalism, as advanced by behavioral law and economics, calls for nudging consumers toward their utility-maximizing preference. Laissez-faire libertarianism, instead, calls for relying on rational-choice theory and the free market to allocate consumer goods. Although each camp presents the other as its diametric opponent, this Note shows that this dichotomy is overstated. Neither camp is incompatible with the other, nor infallible on its own. Through an original behavioral study, this Note reveals flaws in the fundamental assumptions of both camps: that no information can be conveyed neutrally (behavioral law and economics) and that consumer-oriented regulation diminishes autonomy (rational-choice theory). It does so by focusing on an understudied form of consumer-protection regulation: mixed framing. Legal scholars and regulators have largely ignored this phenomenon, yet it offers a more robust and actionable regulatory approach than the existing literature and one that is distinct from both paternalism and libertarianism. By examining the case study of food-safety regulations, this Note sketches the analytic and normative case for why regulators should embrace mixed framing. Using a process of debiasing through mixed framing, agencies can promulgate rules that minimize the risk of deceptive advertising tactics and maximize the provision of neutral and complete information—without running afoul of the First Amendment or falling into paternalistic restrictions on autonomy.

author. Yale Law School, J.D. 2018. I am immensely grateful to Christine Jolls for her feedback and encouragement, and to Douglas Kysar for his supervision during the inception of this project. I would also like to thank Guido Calabresi, Daryl Levinson, Allison Zieve, Patrick Baker, Yena Lee, Inho Andrew Mun, Stuart Shirrell, Sandro Romano, Anthony Sampson, and all of the participants in the 2017 Products Liability seminar for several insightful conversations. Additional thanks to the editors of the Yale Law Journal, and in particular Eliza Pan, for their careful editing. And, of course, I thank Erin Alexander, who disproves the self-interest assumption on a daily basis. This Note was awarded the Judge Ralph K. Winter Prize for the best student paper in law and economics, and it was made possible through the generous support of the Oscar M. Ruebhausen Fund.