In Nudge, Sunstein and Thaler characterize all people as either econs or humans. The econ is a rational being, call him homo economicus, who always accurately weighs the costs and benefits of all decisions, and acts accordingly. A human, on the other hand, is, well human. They are influenced by biases, prejudices, and other behavioral characteristics that result in people doing irrational things. I could elaborate on the definitions, though that is not important for my present purposes.
Are juges econs or humans? If you listen to Chief Justice Roberts talking about a judge acting like an umpire, just calling balls and strikes, applying the facts, to the law, you would think judges are econs. When Justice Sotomayor got in trouble for using empathy in decision-making–definitely a human trait–she backed off from that.
Judges may think they are econs, and act rationally, but, well, there are no econs. We are all human. And I think it is somewhat dangerous to think of and consider judges as econs. Because it is impractical to subject judges to the type of psychological tests Thaler and others conduct (oh boy would that be fune!), extending existing research on people to judges seems appropriate.
Now if we establish that judges are humans and not econs, we have to consider what nudges judges. Here, I think issues of choice architecture, framing, and heuristic biases are quite relevant. How are arguments presented to judges? What do judges see, and what do they not see? What types of social costs does a judge consider–social costs or liberty costs?
Sunstein and Thaler wrote that the Sentencing Guidelines are a form of framing, to facilitate the anchoring bias, and give judges a range of what sentence to give for different crimes.
I think this will provide a nice tie-in with my work on social cost, prediction markets for judges, and behavioral economics.
What nudge’s judges? That title is short enough to make it into a top journal (see # 1–the repository of hope)