¹ Remarks at a White House Coronavirus Task Force Press Briefing, 2020 Daily Comp. Pres. Doc. 1, 4 (Mar. 31, 2020).

² See Peng Zhou et al., A Pneumonia Outbreak Associated with a New Coronavirus of Probable Bat Origin, 579 Nature 270, 270 (2020).

³ Dr. Tedros Adhanom Ghebrey, Dir. Gen., World Health Org., WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 [https://perma.cc/Q93A-ZMU7].

⁴ Jordan Allen et al., Coronavirus World Map: Tracking the Global Outbreak, N.Y. Times, https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html [https://perma.cc/YB6T-K22T] (last updated Apr. 14, 2021).

⁵ See Joseph A. Lewnard & Nathan C. Lo, Scientific and Ethical Basis for Social-Distancing Interventions Against COVID-19, 20 Lancet Infectious Diseases 631, 631 (2020).

⁶ See, e.g., Thomas Hale et al., Variation in Government Responses to COVID-19 9-11 (Blavatnik Sch. of Gov. Working Paper Series, No. BSG-WP-2020/032, 2021), https://www.bsg.ox.ac.uk/research/publications/variation-government-responses-covid-19 [https://perma.cc/5ERL-9F7B] (reviewing the legal response to the pandemic across the world).

⁷ Id. at 11; see also Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31, 2020) (travel limitations into the United States).

⁸ Hale et al., supra note 6, at 11; see also Cal. Exec. Order No. N-33-20 (Mar. 19, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf [https://perma.cc/CUY3-L5XP] (stay-at-home order); Mass. COVID-19 Order No. 13 § 3 (Mar. 10, 2020), https://www.mass.gov/doc/march-23-2020-essential-services-and-revised-gatherings-order/download [https://perma.cc/G9WU-E7CP] (limiting gatherings to no more than ten people).

⁹ Hale et al., supra note 6, at 9; see also, Mich. Exec. Order No. 2020-35 (Apr. 3, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-524032--,00.html [https://perma.cc/S6B5-XWJX] (school closure); Ill. Exec. Order No. 2020-32 § 2.2 (Apr. 30, 2020), https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-32.aspx [https://perma.cc/T6X7-9APD] (closure of non-essential businesses).

¹⁰ See, e.g., Mich. Exec. Order No. 2020-114 (June 5, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-531123--,00.html [https://perma.cc/5DNV-GYG6] (worker-safety regulation); N.C. Exec. Order No. 131 (Apr. 9, 2020) https://files.nc.gov/governor/documents/files/EO131-Retail-Long-Term-Care-Unemployment-Insurance.pdf [https://perma.cc/M64R-7DZA] (retail-sector regulation); N.J. Exec. Order No. 125 § 5 (Apr. 11, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-125.pdf [https://perma.cc/NZD4-CLZ4] (restaurant regulation).

¹¹ See Christopher Adolph et al., Pandemic Politics: Timing State-Level Social Distancing Responses to COVID-19, 46 J. Health Pol., Pol’y & L. 211, 217-19 (2021) (showing how many U.S. states adopted gathering restrictions, school closures, restaurant restrictions, nonessential business closures, and stay-at-home orders during the “early period” of COVID-19, February 26 through March 23); Thomas Hale et al., A Global Panel Database of Pandemic Policies (Oxford COVID-19 Government Response Tracker), 5 Nature Hum. Behav. 529, 531 fig.1 (2021) (illustrating rapid changes in the adoption of containment and health policies worldwide responding to COVID-19 between March 1 and April 1, 2020).

¹² See Cornelia Betsch et al., Monitoring Behavioural Insights Related to COVID-19, 395 Lancet 1255, 1255 (2020).

¹³ See Press Release, Hans Henri P. Kluge, Reg’l Dir. for Eur., World Health Org., Statement – Behavioural Insights are Valuable to Inform the Planning of Appropriate Pandemic Response Measures (May 14, 2020), http://www.euro.who.int/en/media-centre/sections/statements/2020/statement-behavioural-insights-are-valuable-to-inform-the-planning-of-appropriate-pandemic-response-measures [https://perma.cc/Z357-EZWD].

¹⁴ See, e.g., Chris Bonell et al., Harnessing Behavioural Science in Public Health Campaigns to Maintain ‘Social Distancing’ in Response to the COVID-19 Pandemic: Key Principles, 74 J. Epidemiology & Community Health 617, 617 (2020); Peter D. Lunn et al., Using Behavioural Science to Help Fight the Coronavirus: A Rapid, Narrative Review, 3 J. Behav. Pub. Admin. 1, 1 (2020); Moslem Soofi et al., Using Insights from Behavioral Economics to Mitigate the Spread of COVID-19, 18 Applied Health Econ. & Health Pol’y 345, 346 (2020); Jay J. Van Bavel et al., Using Social and Behavioural Science to Support COVID-19 Pandemic Response, 4 Nature Hum. Behav. 460, 464 (2020).

¹⁵ See Eyal Zamir & Doron Teichman, Behavioral Law and Economics 141–56 (2018) (reviewing the development of the field).

¹⁶ See id. at 143–44.

¹⁷ For a systematic introduction to the field, see id. passim.

¹⁸ For an early contribution, see Anne-Lise Sibony, The UK COVID-19 Response: A Behavioural Irony?, 11 Eur. J. Risk Reg. 350, 351 (2020) (examining the legal British response to COVID-19 from a behavioral perspective).

¹⁹ The term nudge was popularized in Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness 6 (rev. ed. 2009). For a critical evaluation of nudges, see Zamir & Teichman, supra note 15, at 171–85 and Ryan Bubb & Richard H. Pildes, How Behavioral Economics Trims Its Sails and Why, 127 Harv. L. Rev. 1593, 1594 (2014).

²⁰ See Adolph et al., supra note 11 (reviewing state mandates enacted in the early phase of COVID-19); Hale et al., Global Panel, supra note 11 (reviewing global mandates enacted in the early phase of COVID-19).

²¹ See, e.g., Kathleen M. O’Reilly et al., Effective Transmission Across the Globe: The Role of Climate in COVID-19 Mitigation Strategies, 4 Lancet Planetary Health e172, e172 (2020) (lack of clear evidence regarding the connection between temperature and transmission); Michael T. Heneka et al., Immediate and Long-Term Consequences of COVID-19 Infections for the Development of Neurological Disease, Alzheimer’s Rsch. & Therapy, June 4, 2020 at 1, 2 (the long-term cognitive implications of the virus); Quan-Xin Long et al., Clinical and Immunological Assessment of Asymptomatic SARS-CoV-2 Infections, 26 Nature Med. 1200, 1204 (2020) (antibodies for SARS-CoV-2 infections decrease within 2-3 months after infection).

²² See Bonell, supra note 14, at 1 (“Interventions have been developed rapidly and could not be informed directly by evidence, given the novelty of the virus and rapid spread of the pandemic.”).

²³ See Zamir & Teichman, supra note 15, at 145–50 (describing the different methodologies used in the social sciences).

²⁴ See Soofi et al., supra note 14, at 347–48.

²⁵ See Shuo Feng et al., Rational Use of Face Masks in the COVID-19 Pandemic, 8 Lancet Respiratory Med. 434, 435 (2020) (contrasting the cultural paradigms of mask usage in Asia as opposed to Europe and North America).

²⁶ See Jillian J. Jordan et al., Don’t Get it or Don’t Spread it? Comparing Self-Interested Versus Prosocially Framed COVID-19 Prevention Messaging 1 (2020) (MIT Initiative on the Digital Economy Working Paper), http://ide.mit.edu/sites/default/files/publications/Working%20paper%20to%20post.pdf [https://perma.cc/MJQ5-JE2K] (reporting a shift in survey results between a survey conducted on March 14–16, 2020 and one conducted on April 17-30, 2020).

²⁷ See Darren Dodd, The COVID-19 Conundrum: Lives vs Livelihood, Fin. Times (May 20, 2020), https://www.ft.com/content/66fca681-ff59-48ca-802d-b0f97dead4ee [https://perma.cc/29KW-BXNX].

²⁸ See, e.g., Cali Curley, Nicky Harrison & Peter Federman, Comparing Motivations for Including Enforcement in US COVID-19 State Executive Orders, 23 J. Comp. Pol’y Analysis Res. & Prac. 191, 193 (2021) (finding that 180 of approximately 1,300 executive orders enacted February-May 2020 in the U.S. included sanctions for non-compliance with COVID-19 control measures, and finding that “decisions to include sanctions or enforcement language may be dictated by the political self-interest and perceived risks of the decision-maker”); Kai Kupferschmidt & Jon Cohen, Can China’s COVID-19 Strategy Work Elsewhere?, 367 Science 1061 (2020) (describing tradeoffs between infection control and the severity of lockdowns and electronic surveillance in China during early phases of the epidemic); Lawrence O. Gostin & Lindsay F. Wiley, Governmental Public Health Powers During the COVID-19 Pandemic: Stay-at-Home Orders, Business Closures, and Travel Restrictions, 323 JAMA 2137, 2138 (2020) (noting that physical distancing requirements implicate “rights, including liberty, privacy, and freedoms of speech, religion, and assembly).

²⁹ See Juliet Bedford et al., COVID-19: Towards Controlling of a Pandemic, 395 Lancet 1015, 1016 (2020) (noting that countries determine their policy strategy “based on national risk assessments”).

³⁰ See World Health Org., COVID-19 Strategy Update 5 (Apr. 14, 2020), https://www.who.int/publications/i/item/strategic-preparedness-and-response-plan-for-the-new-coronavirus [https://perma.cc/7PWM-4JQM] (“The overarching goal is for all countries to control the pandemic by slowing down the transmission and reducing mortality associated with COVID-19.”).

³¹ See Seyed M. Moghadas et al., Projecting Hospital Utilization During the COVID-19 Outbreaks in the United States, 117 Proceedings Nat’l Acad. Sci. 9122, 9123 (2020) (in the United States, without intervention at the peak of the pandemic the demand for ICU beds would be three times greater than supply).

³² See, e.g., Richard Albert Stein, The 2019 Coronavirus: Learning Curves, Lessons, and the Weakest Link, Int’l J. Clinical Prac., Feb. 13, 2020, at 1–2 (describing historical lessons from past pandemics).

³³ See Bedford et al., supra note 29, at 1017 (outlining the main recommendations of The World Health Organization’s Strategic and Technical Advisory Group for Infectious Hazards).

³⁴ Barbara Nussbaumer-Streit et al., Cochrane Database Systematic Revs., Quarantine Alone or in Combination with Other Public Health Measures to Control COVID-19: A Rapid Review 1, 3 (2020).

³⁵ See Neil M. Ferguson et al., Imperial College COVID-19 Response Team, Report 9: Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand 3 (2020), https://www.imperial.ac.uk/mrc-global-infectious-disease-analysis/covid-19/report-9-impact-of-npis-on-covid-19/ [https://perma.cc/RTP9-7ZBT] (describing mitigation and suppression as the two fundamental strategies to deal with a pandemic).

³⁶ See id. at 1.

³⁷ See id. at 3.

³⁸ See David Koh, COVID-19 Lockdowns Throughout the World, 70 Occupational Med. 322, 322 (2020) (reviewing suppression measures in different countries); Solomon Hsiang et al., The Effect of Large-Scale Anti-Contagion Policies on the COVID-19 Pandemic, 584 Nature 262, 262 (2020) (analyzing the effectiveness of quarantine suppression measures).

³⁹ See Benjamin F. Maier & Dirk Brockmann, Effective Containment Explains Subexponential Growth in Recent Confirmed COVID-19 Cases in China, 368 Sci. 742, 742 (2020) (describing isolation and quarantine policies in China).

⁴⁰ See Slow Starter: The Prime Minister’s Belated Lockdown May Determine His Political Future, Economist (London), March 28, 2020, at 26.

⁴¹ See Nathan Layne, Overnight Closure of New York Subways May Presage Bigger Changes, Reuters (May 1, 2020, 6:25 AM), https://www.reuters.com/article/us-health-coronavirus-newyork-subway/overnight-closure-of-new-york-subways-may-presage-bigger-changes-idUSKBN22D55D [https://perma.cc/FFU2-65N3].

⁴² See Asger Lau Andersen et al., Pandemic, Shutdown and Consumer Spending: Lessons from Scandinavian Policy Responses to COVID-19 14–15 (May 12, 2020) (working paper), https://arxiv.org/abs/2005.04630 [https://perma.cc/6BDE-Y7G6].

⁴³ See Austan Goolsbee & Chad Syverson, Fear, Lockdown, and Diversion: Comparing Drivers of Pandemic Economic Decline 2020 12 (Nat’l Bureau of Econ. Research, Working Paper No. 27432, 2020).

⁴⁴ See Ferguson et al., supra note 35, at 3.

⁴⁵ See Tobias S. Brett & Pejman Rohani, COVID-19 Herd Immunity Strategies: Walking an Elusive and Dangerous Tightrope 1 (April 2020) (preprint), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7276024/pdf/nihpp-2020.04.29.20082065.pdf [https://perma.cc/22EZ-97TE].

⁴⁶ See Nils Karlson et al., Sweden’s Coronavirus Strategy Will Soon Be the World’s, Foreign Affairs (May 12, 2020), https://www.foreignaffairs.com/articles/sweden/2020-05-12/swedens-coronavirus-strategy-will-soon-be-worlds [https://perma.cc/B52M-TR9A] (noting that while the Swedish government has not officially aimed for herd immunity, “augmenting immunity is no doubt part of the government’s broader strategy”); Mark Rutte, Prime Minister, Netherlands, Television Address by Prime Mister Mark Rutte of the Netherlands (Mar. 16, 2020), https://www.government.nl/documents/speeches/2020/03/16/television-address-by-prime-minister-mark-rutte-of-the-netherlands [https://perma.cc/NXY2-RKD3] (stating that the Netherlands is aiming to achieve “population immunity”); see also Benjamin Mueller, As Europe Shuts Down, Britain Takes a Different, and Contentious, Approach, N.Y. Times (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/world/europe/coronavirus-britain-boris-johnson.html [https://perma.cc/N7X5-R6AC] (quoting Sir Patrick Vallance, England’s chief scientific adviser, in noting “the government was looking to build up some kind of herd immunity so more people are immune to this disease and we reduce the transmission”). The British government attempted to back away from this term following wide criticism. See Ed Yong, The U.K.’s Coronavirus ‘Herd Immunity’ Debacle, Atlantic (Mar. 16, 2020, 1:13 PM), https://www.theatlantic.com/health/archive/2020/03/coronavirus-pandemic-herd-immunity-uk-boris-johnson/608065/ [https://perma.cc/8Z6U-7SUK].

⁴⁷ See T. Jacob John & Reuben Samuel, Herd Immunity and Herd Effect: New Insights and Definitions, 16 Eur. J. Epidemiology 601, 601–02 (2000).

⁴⁸ Karlson et al., supra note 46 (describing policies in Sweden).

⁴⁹ Id. (noting that in Sweden “[m]any restaurants remain open, although they are lightly trafficked; young children are still in school”).

⁵⁰ See Ning Lu et al., Weathering COVID-19 Storm: Successful Control Measures of Five Asian Countries, 48 Am. J. Infection Control 851, 852 (2020) (describing the responses in Taiwan and South Korea).

⁵¹ See id.

⁵² See Hilary Brueck et al., China Took at Least 12 Strict Measures to Control the Coronavirus. They Could Work for the US, but Would Likely be Impossible to Implement, Business Insider (Mar. 24, 2020, 8:51 AM), https://www.businessinsider.com/chinas-coronavirus-quarantines-other-countries-arent-ready-2020-3 [https://perma.cc/64XM-E4E7] (noting that some measures taken by China would be viewed as unacceptable “digital authoritarianism” in the United States); Karlson et al., supra note 46 (“Sweden’s approach to COVID-19 reflects the country’s distinctive culture, and aspects of it may not be easy to replicate elsewhere.”).

⁵³ See Brody Mullins & Ted Mann, Coronavirus Stimulus Package Fuels Boom for Lobbyists, Wall Street J. (Apr. 1, 2020), https://www.wsj.com/articles/coronavirus-stimulus-package-fuels-boom-for-lobbyists-11585761148 [https://perma.cc/64MH-CSSQ] (reporting on interest-group activity with respect to the federal stimulus plan).

⁵⁴ See, e.g., Elizabeth Bruch & Fred Feinberg, Decision-Making Processes in Social Contexts, 43 Ann. Rev. Socio. 207, 207, 210 (2017).

⁵⁵ See Doron Teichman & Eyal Zamir, Nudge Goes International, 30 Eur. J. Int’l L. 1263, 1266–68 (2020) (examining the mechanisms through which behavioral phenomena impact states’ decisions).

⁵⁶ See id. at1266–67.

⁵⁷ See id.

⁵⁸ See, e.g., World Health Organization (@WHO), Twitter (Jan. 4, 2020, 1:13 PM), https://twitter.com/WHO/status/1213523866703814656 [https://perma.cc/LE56-CMG3]; World Health Organization (@WHO), Twitter (July 1, 2020, 11:31 AM) https://twitter.com/who/status/1278350498416996354 [https://perma.cc/F25C-RFTL].

⁵⁹ Notably, the countries who reacted quickly to the threat of COVID-19 were countries like Taiwan, Singapore and South Korea, which had recent experience with epidemics. See Lu et al., supra note 50, at 852. This observation is consistent with the claim presented below regarding the role of the availability heuristic with respect to decisions made during the pandemic. See infra notes 100–110 and accompanying text.

⁶⁰ See David Klenert et al., Five Lessons from COVID-19 for Advancing Climate Change Mitigation 7 (June 8, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3622201 [https://perma.cc/G4CH-A23U].

⁶¹ See J. David Goodman, How Delays and Unheeded Warnings Hindered New York’s Virus Fight, N. Y. Times (April 8, 2020), https://www.nytimes.com/2020/04/08/nyregion/new-york-coronavirus-response-delays.html [https://perma.cc/6LXK-U8HP] (last updated July 18, 2020).

⁶² See Klenert et al., supra note 60, at 4 (noting that most countries “acted decisively only after local virus transmission had occurred and a large number of cases were reported, despite evidence of the gravity of the situation from other countries”).

⁶³ Goodman, supra note 61.

⁶⁴ For an overview of the later studies, see Zamir & Teichman, supra note 15, at 42–48.

⁶⁵ See Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 Sci. 453, 453 (1981).

⁶⁶ Id.

⁶⁷ For an overview, see Zamir & Teichman, supra note 15, at 48–50.

⁶⁸ Id. at 48–50.

⁶⁹ Id.

⁷⁰ See Mark Spranca et al., Omission and Commission in Judgment and Choice, 27 J. Experimental Soc. Psych. 76, 81–101 (1991).

⁷¹ See id.

⁷² See Peter DeScioli, John Christner & Robert Kurzban, The Omission Strategy, 22 Psych. Sci. 442, 445 (2011) (reporting results showing that people choose omissions strategically to avoid condemnation).

⁷³ See Piers Steel, The Nature of Procrastination: A Meta-analytic and Theoretical Review of Quintessential Self-Regulatory Failure, 133 Psych. Bull. 65, 66 (2007) (defining procrastination).

⁷⁴ Amos Tversky & Eldar Shafir, Choice under Conflict: The Dynamics of Deferred Decision, 3 Psych. Sci. 358, 361 (1992).

⁷⁵ See Steel, supra note 73, at 68 (reviewing literature on task aversiveness).

⁷⁶ See Sibony, supra note 18, at 357 (tying loss aversion to the initial British response).

⁷⁷ Goodman, supra note 61.

⁷⁸ Zhixian Lin & Christopher M. Meissner, Health vs. Wealth? Public Health Policies and the Economy During Covid-19 2 (Nat’l Bureau of Econ. Research, Working Paper No. 27099, 2020).

⁷⁹ Notable contributions to this literature include Jonathan Baron & Mark Spranca, Protected Values, 70 Org. Behav. & Hum. Decision Processes 1 (1997), and Philip E. Tetlock et al., Proscribed Forms of Social Cognition: Taboo Trade-offs, Blocked Exchanges, Forbidden Base Rates, and Heretical Counterfactuals, in Relational Models Theory: A Contemporary Overview 247 (Nick Haslam ed., 2004). For a review of the findings, see Michael R. Waldmann et al., Moral Judgments, in The Oxford Handbook of Thinking and Reasoning 364, 382–84 (Keith J. Holyoak & Robert G. Morrison eds., 2012).

⁸⁰ See Baron & Spranca, supra note 79, at 3.

⁸¹ Id. at 5.

⁸² Id. at 14.

⁸³ Waldmann, supra note 79, at 383. For an experimental demonstration, see Philip E. Tetlock, Coping with Trade-offs: Psychological Constraints and Political Implications, in Elements of Reason: Cognition, Choice, and the Bounds of Rationality 239, 254–55 (Arthur Lupia, Mathew D. McCubbins & Samuel L. Popkin eds., 2000).

⁸⁴ See, e.g., Kim Parker et al., Pew Research Ctr., Economic Fallout from COVID-19 Continues to Hit Lower-Income Americans the Hardest (Sept. 24, 2020), https://www.pewresearch.org/social-trends/2020/09/24/economic-fallout-from-covid-19-continues-to-hit-lower-income-americans-the-hardest/ [https://perma.cc/7HFM-H53J]; Maggie Astor, How 535,000 Covid Deaths Spurred Political Awakenings Across America, N.Y. Times (Mar. 17, 2020), https://www.nytimes.com/2021/03/17/us/politics/covid-survivors.html [https://perma.cc/DM7X-G2MM].

⁸⁵ See Andrew Cuomo, Governor, N.Y. State, Governor Cuomo on Reopening Economies Amid COVID-19 Pandemic: ‘The Fundamental Question Which We’re Not Articulating Is How Much is a Human Life Worth?’ (May 5, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-governor-cuomo-reopening-economies-amid-covid-19-pandemic [https://perma.cc/38DN-VTCR] (“You stay closed, there’s a cost. You reopen quickly and there’s a cost… . That, my friends, is the decision we are really making.”).

⁸⁶ Id.

⁸⁷ Id.

⁸⁸ See Daniel M. Bartels & Douglas L. Medin, Are Morally Motivated Decision Makers Insensitive to the Consequences of Their Choices?, 18 Psych. Sci. 24, 24 (2007) (“[B]y definition, PVs [protected values] are associated with trade-off avoidance.”).

⁸⁹ See Felicia Sonmez, Texas Lt. Gov. Dan Patrick Comes Under Fire for Saying Seniors Should ‘Take a Chance’ On Their Own Lives for Sake of Grandchildren During Coronavirus Crisis, Wash. Post (Mar. 24, 2020, 1:19 PM), https://www.washingtonpost.com/politics/texas-lt-gov-dan-patrick-comes-under-fire-for-saying-seniors-should-take-a-chance-on-their-own-lives-for-sake-of-grandchildren-during-coronavirus-crisis/2020/03/24/e6f64858-6de6-11ea-b148-e4ce3fbd85b5_story.html [https://perma.cc/D8DA-P2UL].

⁹⁰ Jesse McKinley & Shane Goldmacher, How Cuomo, Once on Sidelines, Became the Politician of the Moment, N.Y. Times (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/nyregion/governor-andrew-cuomo-coronavirus.html [https://perma.cc/7WVD-BQ4N] (last updated Feb. 22, 2021).

⁹¹ See, e.g., Koh, supra note 38; Goolsbee & Syverson, supra note 43 (noting the distinction between the effects of lockdown measures and the effects of the pandemic itself). Policymakers could mitigate the health costs associated with lockdowns (e.g., by replacing wages for unemployed workers). But even with all possible mitigation, some costs that are unique to suppression measures will remain.

⁹² See, e.g., Lisa Rosenberg, The Untold Toll –– The Pandemic’s Effect on Patients Without COVID-19, 382 New Eng. J. Med. 2368, 2368–71 (2020); Jeanne M. Santoli et al., Effect of the COVID-19 Pandemic on Routine Pediatric Vaccine Ordering and Administration, 69 Morbidity & Mortality Wkly Rep. 591, 592 (2020).

⁹³ Caroline G. Dunn et al., Feeding Low-Income Children During the COVID-19 Pandemic, 382 New Eng. J. Med. e40(1), e40(1)–40(3) (2020).

⁹⁴ Justin McCrary & Sarath Sanga, The Impact of the Coronavirus Lockdown on Domestic Violence 1–3 (May 28, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3612491 [https://perma.cc/VX9C-4RUD].

⁹⁵ Anthony D. Campbell, Practical Implications of Physical Distancing, Isolation, and Reduced Physicality for Older Adults in Response to COVID-19, 63 J. Gerontological Soc. Work 668, 668-69 (2020). Other direct health harms include increases in psychological distress, substance use disorders and other addictions, and child injuries, to list a few. See Teresa Arora & Ian Grey, Health Behaviour Changes During COVID-19 and the Potential Consequences, 25 J. Health Psych. 1155, 1155–56 (2020) (adverse changes in multiple health behaviors); Yan Sun et al., Brief Report: Increased Addictive Internet and Substance Use Behavior During the COVID-19 Pandemic in China, 29 Am. J. Addiction 268, 268–69 (2020) (addictive behaviors); Matthew T. Tull et al., Psychological Outcomes Associated with Stay-at-Home Orders and the Perceived Impact of COVID-19 on Daily Life, Psychiatry Res., May 12, 2020, at 5 (psychological distress); Anahad O’Conner, Bike Spills, Trampoline Falls and Sips of Sanitizer: How Kids are Getting Hurt at Home, N.Y. Times (June 19, 2020), https://www.nytimes.com/2020/06/19/well/family/coronavirus-shutdown-children-injuries.html [https://perma.cc/V7LQ-P8L9] (child injuries).

⁹⁶ Scholarship on “deaths of despair” expressly links economic disadvantage to increased mortality through suicide and substance use. See, e.g., Anne Case & Angus Deaton, Deaths of Despair and the Future of Capitalism 94 (2020). Economic disadvantage has many other linkages to increased morbidity and mortality, as demonstrated by research on social determinants of health. See, e.g., Sandro Galea et al., Estimated Deaths Attributable to Social Factors in the United States, 101 Am. J. Pub. Health 1456, 1456 (2011). Another strain of research, however, has found conflicting effects of economic recessions on health; some studies have found reduced mortality overall during times of recession, despite increases in suicide. See, e.g., Jose A. Tapia Granados & Ana V. Diez Roux, Life and Death During the Great Depression, 106 Proc. Nat’l Acad. Sci. 17290, 17290 (2009).

⁹⁷ See Wolfram Kawohl & Carlos Nordt, COVID-19, Unemployment, and Suicide, 7 Lancet Psychiatry 389, 390 (2020).

⁹⁸ See Josh Bivens & Ben Zipperer, 12.7 Million Workers Have Likely Lost Employer-provided Health Insurance Since the Coronavirus Shock Began, Econ. Pol’y Inst.: Working Econ. Blog (Apr. 30, 2020, 10:11 AM), https://www.epi.org/blog/12-7-million-workers-have-likely-lost-employer-provided-health-insurance-since-the-coronavirus-shock-began/ [https://perma.cc/Q2GV-REY2].

⁹⁹ See Elizabeth McNichol & Michael Leachman, Ctr. on Budget & Policy Priorities, States Continue to Face Large Shortfalls Due to COVID-19 Effects (July 7, 2020), https://www.cbpp.org/sites/default/files/atoms/files/6-15-20sfp.pdf [https://perma.cc/Y5U5-9KUP] (projecting a $555 billion shortfall in a single year post-COVID).

¹⁰⁰ Linda Qiu, Trump’s Baseless Claim That a Recession Would Be Deadlier Than the Coronavirus, N.Y. Times (Mar. 26, 2020), https://www.nytimes.com/2020/03/26/us/politics/fact-check-trump-coronavirus-recession.html [https://perma.cc/GW4W-268X] (updated May 6, 2020). Echoing this sentiment, others such as Indiana Representative Trey Hollingsworth have called reopening “the lesser of these two evils.” Burgess Everett et al., ‘Should Have Happened Yesterday’: Republicans Press Trump to Restart Economy, Politico (Apr. 15, 2020, 4:30 AM), https://www.politico.com/news/2020/04/15/republicans-trump-economy-coronavirus-186452 [https://perma.cc/8KT2-KBV9].

¹⁰¹ See Ben Kamisar, Pence Says Reopening Economy Safely Critical to Ensure ‘Cure Isn’t Worse than the Disease’, NBC News (Apr. 19, 2020, 10:27 AM), https://www.nbcnews.com/politics/meet-the-press/pence-says-reopening-economy-safely-critical-ensure-cure-isn-t-n1187371 [https://perma.cc/JG7Z-VY5F].

¹⁰² The question of which policy approach yields less harm is “closer” to empirical because it requires not only health costs (which could be quantified in comparable terms across policy options, such as by using quality-adjusted life years), but also unquantifiable concerns such as the demographic distribution of harms. In the US, for example, the pandemic has caused disproportionate harm among populations of color. See, e.g., Eboni G. Price-Haywood et al., Hospitalization and Mortality Among Black Patients and White Patients with COVID-19, 382 New Eng. J. Med. 2534, 2541–42 (2020). For discussions about the distribution of harms arising from COVID-19 responses, see Rebecca E. Glover et al., A Framework for Identifying and Mitigating the Equity Harms of COVID-19 Policy Interventions, 128 J. Clinical Epidemiology 35, 41–43 (2020) and Julia Lynch, Health Equity, Social Policy, and Promoting Recovery from COVID-19, 45 J. Health Pol. Pol’y & L. 983, 984–85 (2020).

¹⁰³ Dhaval M. Dave et al., Black Lives Matter Protests and Risk Avoidance: The Case of Civil Unrest During a Pandemic 1–6 (Nat’l Bureau of Econ. Research, Working Paper 27408, 2021).

¹⁰⁴ See, e.g., Michael Powell, Experts Feel Torn on Dangers of Different Protests, N.Y. Times, July 11, 2020, at A4 (quoting former New York City health commissioner and Harvard professor Mary Travis Bassett: “Racism has been killing people a lot longer than Covid-19”).

¹⁰⁵ Open Letter Advocating for an Anti-racist Public Health Response to Demonstrations Against Systemic Injustice Occurring During the COVID-19 Pandemic (on file at https://drive.google.com/file/d/1Jyfn4Wd2i6bRi12ePghMHtX3ys1b7K1A/view [https://perma.cc/83HA-H529]).

¹⁰⁶ Dan Diamond, Suddenly, Public Health Officials Say Social Justice Matters More Than Social Distance, Politico (June 4, 2020), https://www.politico.com/news/magazine/2020/06/04/public-health-protests-301534 [https://perma.cc/GP5U-7CB2] (quoting Jennifer Nuzzo @JenniferNuzzo).

¹⁰⁷ Kim Parker et al., Pew Research Ctr., Amid Protests, Majorities Across Racial and Ethnic Groups Express Support for the Black Lives Matter Movement 5 (June 12, 2020), https://www.pewsocialtrends.org/2020/06/12/amid-protests-majorities-across-racial-and-ethnic-groups-express-support-for-the-black-lives-matter-movement/ [https://perma.cc/4W4R-C2XZ].

¹⁰⁸ See Dave et al., supra note 103, at 6–7; Gregory Neyman & William Dalsey, Black Lives Matter Protests and COVID-19 Cases: Relationship in Two Databases, J. Pub. Health, Nov. 20, 2020, at 3.

¹⁰⁹ Steven Fein, Effects of Suspicion on Attributional Thinking and the Correspondence Bias, 79 J. Personality & Soc. Psych. 1164, 1165–66 (1996) [hereinafter Fein, Effects of Suspicion]; Steven Fein et al., Suspicion of Ulterior Motivation and the Correspondence Bias, 58 J. Personality & Soc. Psychol. 753, 753–54 (1990) [hereinafter Fein et al., Suspicion of Ulterior Motivation].

¹¹⁰ Fein, Effects of Suspicion, supra note 109, at 1165.

¹¹¹ Id. at 1166–67.

¹¹² Geoffrey D. Munro et al., Motivated Suspicion: Asymmetrical Attributions of the Behavior of Political Ingroup and Outgroup Members, 32 Basic & Applied Soc. Psych. 173, 178 (2010).

¹¹³ See, e.g., Arch G. Mainous III, A Towering Babel of Risk Information in the COVID-19 Pandemic: Trust and Credibility in Risk Perception and Positive Public Health Behaviors, 52 Fam. Med. 317, 318 (2020) (arguing that where it is possible to interpret COVID-19 recommendations as economically self-serving, lack of trust will undermine the message).

¹¹⁴ See Jamelle Bouie, Opinion, Trump Thinks He Knows Better Than the Doctors About Coronavirus, N.Y. Times (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/opinion/trump-coronavirus-economy.html [https://perma.cc/2GME-P45U].

¹¹⁵ Craig A. Harper et al., Functional Fear Predicts Public Health Compliance in the COVID-19 Pandemic, Int’l J. Mental Health & Addiction, Apr. 27, 2020, at 8–9.

¹¹⁶ See Alison Bish & Susan Michie, Demographic and Attitudinal Determinants of Protective Behaviours During a Pandemic: A Review, 15 Brit. J. Health Psych. 797, 810 (2010) (reporting on such findings from the United Kingdom, Hong Kong, Korea, Australia and the Netherlands).

¹¹⁷ See Zamir & Teichman, supra note 15, at 28–42.

¹¹⁸ See id.

¹¹⁹ See id.

¹²⁰ See Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 4 Cognitive Psych. 207, 209 (1973) [hereinafter Tversky & Kahneman, Availability]; see also Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Sci. 1124, 1127–28 (1974) [hereinafter: Tversky & Kahneman, Judgment Under Uncertainty].

¹²¹ Tversky & Kahneman, Judgment Under Uncertainty, supra note 120, at 1127.

¹²² The classic early work is Sarah Lichtenstein et al., Judged Frequencies of Lethal Events, 4 J. Experimental Psych. 551 (1978). For a later study, see, e.g., Ralph Hertwig, Thorsten Pachur & Stephanie Kurzenhäuser, Judgments of Risk Frequencies: Tests of Possible Cognitive Mechanisms, 31 J. Experimental Psych. 621 (2005).

¹²³ See Lichtenstein et al., supra note 122, at 575–76.

¹²⁴ Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683, 683 (1999).

¹²⁵ Terje Aven & Frederic Bouder, The COVID-19 Pandemic: How Can Risk Science Help?, 23 J. Risk Res. 849, 851 (2020); see also Sweta Chakraborty, How Risk Perceptions, Not Evidence, Have Driven Harmful Policies on COVID-19, 11 Eur. J. Risk Reg. 236, 236 (2020) (“COVID-19 hits all of the cognitive triggers for how the lay public misjudges risk”).

¹²⁶ See, e.g., From Wuhan to Coventry: Tracking the Coronavirus in Pictures, NBC News, https://www.nbcnews.com/specials/wuhan-to-coventry-tracking-coronavirus-in-pictures/ [https://perma.cc/HYT5-W8HC].

¹²⁷ See Andrew Pulver, Tom Hanks ‘Feeling Better’ After Covid-19 Diagnosis, Guardian (Mar. 23, 2020 7:35 AM), https://www.theguardian.com/film/2020/mar/23/tom-hanks-feeling-better-after-covid-19-diagnosis [https://perma.cc/8L5E-YP3D] (Tom Hanks illness). Other publicized cases (among many) include that of actor Daniel Dae Kim, musicians Pink and Scarface, reality TV celebrity Andy Cohen, and singer Plácido Domingo. See Vulture Editors, All the Celebrities Who Have Tested Positive for the Coronavirus, Vulture (July 18, 2020), https://www.vulture.com/article/famous-people-celebrities-with-coronavirus.html [http://web.archive.org/web/20210416033710/https://www.vulture.com/article/famous-people-celebrities-with-coronavirus.html] (last updated Feb. 25, 2021).

¹²⁸ See Guardian Staff, PM’s Covid-19 Timeline: From ‘Mild Symptoms’ to a Brush with Death, Guardian (Apr. 12, 2020, 12:34 PM), https://www.theguardian.com/world/2020/apr/05/timeline-boris-johnson-and-coronavirus [https://perma.cc/GBT4-8P92].

¹²⁹ See Vulture Editors, supra note 127.

¹³⁰ See Lichtenstein et al., supra note 122, at 575 (“[T]he media have important effects on our judgments, not only because of what they don’t report (successful plane trips or reactor operations), but because of what they do report to a disproportionate extent.”).

¹³¹ See Cass R. Sunstein, Precautions Against What? The Availability Heuristic and Cross-Cultural Risk Perception, 57 Ala. L. Rev. 75, 89–92 (2005) (analyzing connections among the availability heuristic, media coverage, and risk perceptions).

¹³² See George Loewenstein & Jane Mather, Dynamic Processes in Risk Perception, 3 J. Risk & Uncertainty 155, 166 (1990) (reviewing the psychological literature on adaptation).

¹³³ See Sean Hannon Williams, Probability Errors: Overoptimism, Ambiguity Aversion, and the Certainty Effect, in The Oxford Handbook of Behavioral Economics and the Law 335, 337 (Eyal Zamir & Doron Teichman eds., 2014).

¹³⁴ Id.

¹³⁵ On decisions made based on experience, see Ralph Hertwig et al., Decisions from Experience and the Effect of Rare Events in Risky Choice, 15 Psych. Sci. 534, 538 (2004), and Ralph Hertwig & Timothy J. Pleskac, Decisions from Experience: Why Small Samples?, 115 Cognition 225, 235 (2010).

¹³⁶ See Ido Erev & Ernan Haruvy, Learning and the Economics of Small Decisions, in The Handbook of Experimental Economics 638, 648 (John H. Kagel & Alvin E. Roth eds., 2017).

¹³⁷ See Emma Teasdale et al., Public Perceptions of Non-Pharmaceutical Interventions for Reducing Transmission of Respiratory Infection: Systematic Review and Synthesis of Qualitative Studies, 14 BMC Pub. Health 589, 601 (2014) (noting that during the 2009 N1H1 pandemic the public adopted an “it won’t happen to me” attitude toward risk).

¹³⁸ See J. David Goodman & Michael Rothfeld, New York City Seen Having 1 in 5 Infected, N.Y. Times, Apr. 24, 2020, at A1 (“In New York City, about 21 percent tested positive for coronavirus antibodies during the state survey.”).

¹³⁹ See, e.g., Lucius Caviola et al., The Evaluability Bias in Charitable Giving: Saving Administration Costs or Saving Lives?, 9 Judgment & Decision Making 303, 304–05 (2014); Christopher K. Hsee, The Evaluability Hypothesis: An Explanation for Preference Reversals Between Joint and Separate Evaluations of Alternatives, 67 Org. Behav. & Hum. Decision Processes 247, 249–50 (1996).

¹⁴⁰ Caviola et al., supra note 139, at 305–06.

¹⁴¹ Id.

¹⁴² Id. at 304, 311.

¹⁴³ See supra Part II.A.

¹⁴⁴ See Kim Usher et al., Family Violence and COVID-19: Increased Vulnerability and Reduced Options for Support, 29 Int’l J. Mental Health Nursing 549, 549 (2020).

¹⁴⁵ See Leslie Lenert & Brooke Yeager McSwain, Balancing Health Privacy, Health Information Exchange, and Research in the Context of the COVID-19 Pandemic, 27 J. Am. Med. Informatics Assoc. 963, 964, 966 (2020).

¹⁴⁶ See e.g., Allen et al., supra note 4.

¹⁴⁷ See Dorte Gyrd-Hansen et al., Joint and Separate Evaluation of Risk Reduction: Impact on Sensitivity to Risk Reduction Magnitude in the Context of 4 Different Risk Information Formats, Med. Decision Making, Jan.–Feb. 2011, at E2.

¹⁴⁸ See, e.g., Jinshan Hong et al., The Best and Worst Places to be During Covid: The US Stages a Recovery, Bloomberg (Mar. 25, 2021), https://www.bloomberg.com/graphics/covid-resilience-ranking [https://perma.cc/9L78-H824] (updated Mar. 26, 2021).

¹⁴⁹ See id.

¹⁵⁰ See e.g., Ghazala Azmat & Nagore Iriberri, The Importance of Relative Performance Feedback Information: Evidence from a Natural Experiment Using High School Students, 94 J. Pub. Econ. 435, 451 (2010); Daniel Herbst & Alexandre Mas, Peer Effects on Worker Output in the Laboratory Generalize to the Field, 350 Sci. 545, 549 (2015).

¹⁵¹ See Camilla Addey et al., The Rise of International Large-scale Assessments and Rationales for Participation, 47 Compare 434, 440 (2017).

¹⁵² See Thiemo R. Fetzer et al., Global Behaviors and Perceptions at the Onset of the COVID-19 Pandemic 8 (Nat’l Bureau of Econ. Research, Working Paper No. 27082, 2020).

¹⁵³ Id. at 4–5.

¹⁵⁴ See Damien Bol et al., The Effect of COVID-19 Lockdowns on Political Support: Some Good News for Democracy?, 60 Eur. J. Pol. Res. 497, 502 (2021); see also, Adam Chilton et al., The Normative Force of Higher-Order Law: Evidence from Six Countries During the COVID-19 Pandemic 25 (Jan. 25, 2021) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3591270 [https://perma.cc/Q3U8-HDPM] (reporting that the pandemic has created circumstances in which “high numbers of people were willing to support substantial civil liberty restrictions”).

¹⁵⁵ See, e.g., Kevin Freking & Hannah Fingerhut, AP-NORC poll: Support for Restrictions, Virus Worries Wane, Associated Press (June 25, 2020), https://apnews.com/915fdbccb3434fee125efaaaaefba0af [https://perma.cc/BG82-JXKF] (support for stay-at-home orders declines from 80% in April 2020 to 50% in June 2020).

¹⁵⁶ See supra notes 115–116 and accompanying text.

¹⁵⁷ For research exploring this topic in other countries, see Erik Merkley et al., A Rare Moment of Cross-Partisan Consensus: Elite and Public Response to the COVID-19 Pandemic in Canada, 53 Can. J. Pol. Sci. 311 (2020) (consensus in Canada), and Ernesto Calvo & Tiago Ventura, Will I Get Covid-19? Partisanship, Social Media Frames, and Perceptions of Health Risks in Brazil, 63 Latin Am. Pol. Soc’y 1 (2020) (polarization in Brazil).

¹⁵⁸ Scott R. Baker et al., How Does Household Spending Respond to an Epidemic? Consumption During the 2020 COVID-19 Pandemic, 10 Rev. Asset Pricing Stud. 834, 836 (2020) (citing polls by Axios and Quinnipiac); see John M. Barrios & Yael Hochberg, Risk Perception Through the Lens of Politics in the Time of the COVID-19 Pandemic 4 (Nat’l Bureau of Econ. Research, Working Paper No. 27008, 2020) (finding lower perceptions of risk in counties with higher shares of Trump voters). But see Shana Kushner Gadarian et al., Partisan Endorsement Experiments do not Affect Mass Opinion on COVID-19 5, 7 (Apr. 13, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3574605 [https://perma.cc/JH6N-9LQW] (finding few partisan differences in people’s response to messages that were manipulated to show different levels of Republican vs. Democratic support for the CDC).

¹⁵⁹ Hunt Allcott et al., Polarization and Public Health: Partisan Differences in Social Distancing During the Coronavirus Pandemic 17 (Nat’l Bureau of Econ. Research, Working Paper No. 26946, 2020); Shana Kushner Gadarian et al., Partisanship, Health Behavior, and Policy Attitudes in the Early Stages of the COVID-19 Pandemic, PLOS One, Apr. 7, 2021, at 9.

¹⁶⁰ Joanne M. Miller, Psychological, Political, and Situational Factors Combine to Boost COVID-19 Conspiracy Theory Beliefs, 53 Can. J. Pol. Sci. 327, 329–30 (2020).

¹⁶¹ Adolph et al., supra note 11, at 221; see also Leonardo Baccini & Abel Brodeur, Explaining Governors’ Response to the COVID-19 Pandemic in the United States, 49 Am. Pol. Res. 215, 215 (2020) (a study of governors’ characteristics as determinants of implementing stay-at-home orders).

¹⁶² Gerard J. Tellis et al., Why Did US Governors Delay Lockdowns Against COVID-19? Disease Science vs Learning, Cascades, and Political Polarization 8, 10 (April 13, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3575004 [https://perma.cc/VE7J-W8R6].

¹⁶³ Andrew Daniller, Americans Remain Concerned that States Will Lift Restrictions Too Quickly, but Partisan Differences Widen, Pew Res. Ctr. (May 7, 2020), https://www.pewresearch.org/fact-tank/2020/05/07/americans-remain-concerned-that-states-will-lift-restrictions-too-quickly-but-partisan-differences-widen/ [https://perma.cc/Q2KE-L23W].

¹⁶⁴ Pew Research Ctr., Republicans, Democrats Move Even Further Apart in Coronavirus Concerns 4 (2020), https://www.pewresearch.org/politics/2020/06/25/republicans-democrats-move-even-further-apart-in-coronavirus-concerns/ [https://perma.cc/6KBB-225C].

¹⁶⁵ Id. at 5.

¹⁶⁶ Id. at 10.

¹⁶⁷ Marcus Painter & Tian Qiu, Political Beliefs Affect Compliance with Government Mandates, 185 J. Econ. Behav. & Org. 688, 693, 699 (2021); see also Barrios & Hochberg, supra note 158, at 11–12 (finding that a greater proportion of Trump voters in a county is correlated with lower social distancing behavior despite state mandates, but that social distancing increased after announcements of COVID exposure at the Conservative Political Action Conference and White House appeals to “slow the spread”); Keena Lipsitz & Grigore Pop-Eleches, The Partisan Divide in Social Distancing 20 (May 7, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3595695 [https://perma.cc/VP8M-PCQJ] (finding that consumption of Fox News increased retail and recreation visits with high Fox News market shares but did not increase retail and recreation visits in Democratic counties and counties with low Fox News market shares).

¹⁶⁸ See Painter & Qiu, supra note 169, at 699–700 (finding that Democratic counties are more responsive to state policies from Democratic governors, whereas Republican counties show little significant difference in response to state governors from either party); see also Daniel A. N. Goldstein & Johannes Wiedemann, Who Do You Trust? The Consequences of Political and Social Trust for Public Responsiveness to COVID-19 Orders 19 (May 9, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3580547 [https://perma.cc/5VA5-MXSE] (finding a reduction in the stay-at-home compliance gap between Republican and Democratic counties if a Republic governor gave the order).

¹⁶⁹ Gadarian et al., supra note 159, at 9. Around this time, 33% of Republicans and 59% of Democrats believed that COVID-19 was a “major threat” to the health of the population; 76% and 49%, respectively, believed that media had exaggerated the threat of the virus. Pew Research Ctr., U.S. Public Sees Multiple Threats from the Coronavirus – and Concerns are Growing 5, 8 (2020), https://www.pewresearch.org/politics/2020/03/18/u-s-public-sees-multiple-threats-from-the-coronavirus-and-concerns-are-growing/ [https://perma.cc/FJU2-K288]. Spending patterns by Democrats and Republicans also began to diverge, with Democrats spending less at restaurants and retail, which is congruent with compliance with stay-at-home orders. See Baker et al., supra note 158, at 851–52.

¹⁷⁰ Ying Fan et al., Heterogeneous Actions, Beliefs, Constraints and Risk Tolerance During the COVID-19 Pandemic 7–10 (Nat’l Bureau of Econ. Research, Working Paper No. 27211, 2020).

¹⁷¹ Steven Sparks & Gary Langer, 27% Unlikely to be Vaccinated Against the Coronavirus; Republicans, Conservatives Especially: POLL, ABC News (June 2, 2020, 7:08 AM), https://abcnews.go.com/Politics/27-vaccinated-coronavirus-republicans-conservatives-poll/story?id=70962377 [https://perma.cc/WM9W-HXT2]; see also Lauran Neergaard & Hannah Fingerhut, AP-NORC poll: Half of Americans Would Get a COVID-19 Vaccine, Associated Press (May 27, 2020), https://apnews.com/dacdc8bc428dd4df6511bfa259cfec44 [https://perma.cc/Z5LE-GM6Z] (roughly comparable findings by AP-NORC); Ariel Fridman, Rachel Gershon & Ayelet Gneezy, COVID-19 and Vaccine Hesitancy: A Longitudinal Study, 16 PLOS ONE e0250123 (2021) (finding that COVID-19 vaccination attitudes diverged on the basis of political party during 2020, with downward trends in favorable COVID-19 vaccine attitudes among Republicans).

¹⁷² Danielle Ivory, Lauren Leatherby & Robert Gebeloff, Least Vaccinated U.S. Counties Have Something in Common: Trump Voters, N.Y. Times, (Apr. 17, 2021), https://www.nytimes.com/interactive/2021/04/17/us/vaccine-hesitancy-politics.html [https://perma.cc/23MD-XMHW].

¹⁷³ Id.

¹⁷⁴ Id.; see also Monmouth U. Polling Inst., National: One in Five Still Shun Vaccine, Monmouth U. 1, 2 (Apr. 14, 2021), https://www.monmouth.edu/polling-institute/reports/monmouthpoll_us_041421/monmouth.edu/polling-institute/documents/monmouthpoll_us_041421.pdf/ [https://perma.cc/HLJ7-RAX8] (finding in a nationally representative U.S. poll that 61% of Democrats had received at least one shot, compared to 47% of independents and 36% of Republicans).

¹⁷⁵ For theorists’ further discussions of varying expectations of social order and risk tolerance according to culture worldviews, see Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 Yale L. & Pol’y Rev. 149, 151–54 (2006).

¹⁷⁶ Aaron Wildavsky & Karl Dake, Theories of Risk Perception: Who Fears What and Why?, Daedalus, Fall 1990, at 41, 50 (indexing risk-perception data archives); see also Kristy E. H. Michaud et al., The Relationship Between Cultural Values and Political Ideology, and the Role of Political Knowledge, 30 Pol. Psych. 27, 39 (2009) (finding that those with high political knowledge tend to assume that egalitarianism and individualism reflect political ideology, rather than cultural worldviews or values). Notably, these cultural values are more predictive of risk perception than party identity alone—and also more predictive than gender or race. Kahan & Braman, supra note 173, at 158–59.

¹⁷⁷ Kahan & Braman, supra note 173, at 158.

¹⁷⁸ Id.; see also Dan M. Kahan et al., Who Fears the HPV Vaccine, Who Doesn’t, and Why? An Experimental Study of the Mechanisms of Cultural Cognition, 34 L. & Hum. Behav. 501, 504, 511 (2010) (finding that egalitarian communitarians, who support a society “in which the needs of the collective take precedence over those of the individual,” were more likely to accept arguments favoring mandatory vaccination programs).

¹⁷⁹ This would echo findings from the HPV and Ebola contexts. See Kahan et al., supra note 176, at 511 (finding that subjects with hierarchical and individualistic worldviews were more concerned about the risks of the HPV vaccination than those with egalitarian or communitarian worldviews); see also Z. Janet Yang, Altruism During Ebola: Risk Perception, Issue Salience, Cultural Cognition, and Information Processing, 36 Risk Analysis 1079, 1086 (2016) (finding that subjects with individualist or hierarchical worldviews felt less inclined toward altruistic behaviors, whether private donation or government relief, during the U.S. Ebola outbreak).

¹⁸⁰ See Sandra Dryhurst et al., Risk Perceptions of COVID-19 Around the World, 23 J. Risk Res. 994, 996 (2020) (using the individualism-communitarianism dimension of the cultural cognition scale to assess public risk perception of COVID-19).

¹⁸¹ Id. at 996, 998.

¹⁸² Benjamin Oosterhoff & Cara A. Palmer, Attitudes and Psychological Factors Associated with News Monitoring, Social Distancing, Disinfecting, and Hoarding Behaviors Among US Adolescents During the COVID-19 Pandemic, 174 JAMA Pediatrics 1184, 1188 (2020).

¹⁸³ Adam Brzezinski et al., Belief in Science Influences Physical Distancing in Response to COVID-19 Lockdown Policies 6 (Becker Friedman Inst. for Econ. at U. Chi., Working Paper No. 2020-56, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587990 [https://perma.cc/E8W6-J6C3].

¹⁸⁴ Zamir & Teichman, supra note 15, at 58 (describing this mode as directional processing of information, rather than accuracy-motivated processing).

¹⁸⁵ See Dan M. Kahan, Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1, 19–22 (2011) (describing varieties of motivated reasoning stemming from the unconscious need to sustain one’s identity in a group, or the need to offset others’ motivated reasoning).

¹⁸⁶ In a foundational study of biased assimilation, people with strong priors favoring or opposing the death penalty rated research as more convincing when it confirmed their beliefs about deterrence. Charles G. Lord et al., Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. Personality & Soc. Psych. 2098, 2099, 2101–02 (1979).

¹⁸⁷ Id. at 2105 (describing the “rebound effect” in which study subjects reverted to their former attitudes or beliefs, or more extreme positions, after being presented with disconfirming information).

¹⁸⁸ See generally Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. Gen. Psych. 175 (1998) (reviewing research evidence for confirmation bias).

¹⁸⁹ See Kahan et al., supra note 176, at 511 (finding that participants rated arguments as more persuasive when they believed that the speaker shared their own cultural worldview); see also Chanthika Pornpitakpan, The Persuasiveness of Source Credibility: A Critical Review of Five Decades’ Evidence, 34 J. Applied Soc. Psych. 243, 244–45 (2004) (describing studies which observed greater attitude change toward minority sources of information from the same group).

¹⁹⁰ See Dan M. Kahan et al., Cultural Cognition of Scientific Consensus, 14 J. Risk Res. 147, 166–67 (2011) (finding that study subjects with hierarchical and individualistic outlooks diverged from those with egalitarian and communitarian outlooks on the state of expert opinion on climate change, gun regulation, and nuclear waste disposal).

¹⁹¹ See Lee Ross et al., The “False Consensus Effect”: An Egocentric Bias in Social Perception and Attribution Biases, 13 J. Experimental Soc. Psych. 279, 286–88 (1977) (demonstrating the “false consensus effect” by asking subjects to estimate the percentage of peers who agreed with their responses to hypothetical choices).

¹⁹² See Zamir & Teichman, supra note 15, at 59–60 (aggregating findings).

¹⁹³ Pew Research Ctr., supra note 164, at 6 (“Republicans are now nearly 40 percentage points more likely than Democrats to say they would be comfortable eating out in a restaurant (65% of Republicans vs. 28% of Democrats). In March, the gap was a more modest 13 points (29% of Republicans, 16% of Democrats).”).

¹⁹⁴ Carey Funk et al., Pew Research Ctr., Trust in Medical Scientists Has Grown in U.S., but Mainly Among Democrats 5 (2020), https://www.pewresearch.org/science/2020/05/21/trust-in-medical-scientists-has-grown-in-u-s-but-mainly-among-democrats/ [https://perma.cc/H8CT-KV42].

¹⁹⁵ Id. (noting an increase from 37% to 53% of Democrats expressing confidence in medical scientists between January 2019 and May 2020, whereas Republican confidence increased from 31% to 32%).

¹⁹⁶ Anthony S. Fauci, M.D., Nat’l Inst. of Allergy & Infectious Diseases, https://www.niaid.nih.gov/about/anthony-s-fauci-md-bio [https://perma.cc/6J2Q-SEX4] (last updated Mar. 14, 2021).

¹⁹⁷ See, e.g., Monica Alba et al., Fauci’s Absence from Recent Coronavirus Briefings Draws Notice, NBC News (Apr. 25, 2020, 4:14 PM), https://www.nbcnews.com/politics/white-house/fauci-s-absence-recent-coronavirus-briefings-draws-notice-n1192421 [https://perma.cc/C8TG-GV36] (“Until this week, Dr. Anthony Fauci was a near-constant presence at the daily coronavirus task force briefings at the White House.”).

¹⁹⁸ Kabir Khanna & Fred Backus, Trump’s Marks for Handling COVID-19 Outbreak Decline – CBS News Poll, CBS News (May 14, 2020, 10:37 AM), https://www.cbsnews.com/news/coronavirus-donald-trump-marks-handling-covid-outbreak-decline-cbs-news-poll-today-2020-05-14/ [https://perma.cc/C3YD-W5YV]. A New York Times poll had similar findings. See Margot Sanger-Katz, On Coronavirus, Americans Still Trust the Experts, N.Y. Times (Sept. 18, 2020), https://www.nytimes.com/2020/06/27/upshot/coronavirus-americans-trust-experts.html [https://perma.cc/G8CE-9W6P] (citing a New York Times-Siena College poll in which 81% of Democrats, but only 51% of Republicans, trusted Dr. Fauci as an accurate source of information about coronavirus).

¹⁹⁹ Cass R. Sunstein & Reid Hastie, Wiser: Getting Beyond Groupthink to Make Groups Smarter, 77–78 (2015); see also David Schkade et al., Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139, 1141 (2000) (finding jury deliberation over punitive awards in civil cases produced higher dollar awards and more extreme group judgments than the jurors’ median predeliberation amounts).

²⁰⁰ Sunstein & Hastie, supra note 197, at 83–84.

²⁰¹ See Amy Mitchell & Rachel Weisel, Pew Research Ctr., Political Polarization & Media Habits 4, 7 (2014), https://www.journalism.org/2014/10/21/political-polarization-media-habits/ [https://perma.cc/KLL2-JC7A] (finding that nearly half of conservatives are likely to cite Fox News as their main news media source and are twice as likely as the average Facebook user to view political content on the platform that aligns with their own). But note that due to motivated reasoning, being exposed to opposing views may also increase polarization, particularly among Republicans. See Christopher A. Bail et al., Exposure to Opposing Views on Social Media Can Increase Political Polarization, 115 Proc. Nat’l Acad. Scis. 9216, 9217 (2018) (describing Republicans’ responses after exposure to a liberal Twitter “bot” that tweeted messages from liberal media, elected officials and opinion leaders). Trends toward consumption of politically biased news long predate the pandemic. See, e.g., Gregory J. Martin & Ali Yurukoglu, Bias in Cable News: Persuasion and Polarization, 107 Am. Econ. Rev. 2565, 2595–96 (2017) (describing how media providers’ ideological positioning attracts like-minded audiences and benefits their viewership ratings). Consumption of biased news sources has been empirically shown to exacerbate group polarization on the basis of political ideology. See Markus Prior, Media and Political Polarization, 16 Ann. Rev. Pol. Sci. 101, 108–09 (2013), for a review of empirical examples of the effects of exposure to partisan media on the politically sophisticated viewers.

²⁰² For overviews of polarization, see Delia Baldassarri & Andrew Gelman, Partisans Without Constraint: Political Polarization and Trends in American Public Opinion, 114 Am. J. Socio. 408 (2008), and Shanto Iyengar & Sean J. Westwood, Fear and Loathing Across Party Lines: New Evidence on Group Polarization, 59 Am. J. Pol. Sci. 690 (2015).

²⁰³ Matthew Ballew et al., Yale Program on Climate Change & Comm., American Public Responses to COVID-19: April 2020 10 (2020), https://climatecommunication.yale.edu/wp-content/uploads/2020/04/american-public-responses-covid19-april-2020b.pdf [https://perma.cc/YL4R-935B]. A separate preliminary study on political ideology and trust in media among US adults found that conservatives were less likely to believe that the “mainstream media” reported accurate information about COVID-19, and that it was this mistrust (rather than any other factor) that tended to explain partisan differences in compliance with social distancing requirements. Hank Rothgerber et al., Politicizing the COVID-19 Pandemic: Ideological Differences in Adherence to Social Distancing 15 (Sept. 27, 2020) (working paper), https://psyarxiv.com/k23cv [https://perma.cc/LNX8-D3NB].

²⁰⁴ See Leonardo Bursztyn et al., Misinformation During a Pandemic 1–2 (Becker Friedman Inst. for Econ. at U. Chi., Working Paper No. 2020-44, 2020), https://bfi.uchicago.edu/wp-content/uploads/BFI_WP_202044.pdf [ https://perma.cc/LCL3-9K5L] (summarizing the effects of diverging information from Tucker Carlson and Sean Hannity on the hosts’ similar viewer populations).

²⁰⁵ Id. at 6–7.

²⁰⁶ Id. at 2–3.

²⁰⁷ Andrey Simonov et al., The Persuasive Effect of Fox News: Non-Compliance with Social Distancing During the COVID-19 Pandemic 20–21 (Nat’l Bureau of Econ. Research, Working Paper No. 27237, 2020), https://www.nber.org/papers/w27237 [https://perma.cc/T8PE-8ZQK].

²⁰⁸ Elliott Ash et al., The Effect of Fox News on Health Behavior During COVID-19, at 6 (Aug. 7, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3636762 [https://perma.cc/88PP-LRSJ].

²⁰⁹ Dryhurst et al., supra note 178, at 998.

²¹⁰ Lindsay Dolan & Quynh Nguyen, Mutual Gain or Resource Drain? Attitudes Toward International Financial Assistance During the Early COVID-19 Pandemic 1 (May 29, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3577622 [https://perma.cc/P5J3-7RT5].

²¹¹ See Thaler & Sunstein, supra note 19, at 6.

²¹² Policymakers could also use positive incentives (i.e., rewards) to encourage desired behavior. However, this tool seems ill fit for dealing with a pandemic given the likely costs of rewarding everyone who participates in routine activities. On the role of positive incentives, see Brian Galle, Tragedy of the Carrots: Economics and Politics in the Choice of Price Instruments, 64 Stan. L. Rev. 797, 832 (2012), and Gerrit de Geest & Giuseppe Dari-Mattiacci, The Rise of Carrots and the Decline of Sticks, 80 U. Chi. L. Rev. 341, 353 (2013).

²¹³ See Cass R. Sunstein, Nudges.Gov: Behaviorally Informed Regulation, in The Oxford Handbook of Behavioral Economics and the Law, in supra note 133, at 719, 719.

²¹⁴ Thaler & Sunstein, supra note 19, at 6.

²¹⁵ See Richard H. Thaler, Cass R. Sunstein & John P. Balz, Choice Architecture, in The Behavioral Foundations of Public Policy 428, 430 (Eldar Shafir ed., 2013).

²¹⁶ See, e.g., Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives?, 302 Sci. 1338, 1338 (2003).

²¹⁷ See, e.g., Tamara Bucher et al., Nudging Consumers Towards Healthier Choices: A Systemic Review of Positional Influences on Food Choice, 115 Brit. J. Nutrition 2252, 2252 (2016).

²¹⁸ See, e.g., Amy L. Wilson et al., Nudging Healthier Food and Beverage Choices Through Salience and Priming. Evidence from a Systematic Review, 51 Food Quality & Preference 47, 51–52 (2016).

²¹⁹ See, e.g., Richard G. Newell & Juha Siikamäki, Nudging Energy Efficiency Behavior: The Role of Information Labels, 1 J. Ass’n Envtl. & Resource Economists 555, 555 (2014).

²²⁰ See Cass R. Sunstein, The Ethics of Nudging, 32 Yale J. Reg. 413, 417 (2015) (“a nudge must fully preserve freedom of choice”).

²²¹ See Curley et al., supra note 28 (describing enforcement mechanisms attached to COVID-19 mandates, such as jail time or fines).

²²² See Thaler, Sunstein & Balz, supra note 19, at 433–34 (describing the means used in Chicago’s Lake Shore Drive).

²²³ Three notable examples are the United Kingdom in the initial stage of the pandemic, the Netherlands, and Sweden. See Robert Hutton, Keep Calm and Wash Your Hands: Britain’s Strategy to Beat Virus, Bloomberg (March 11, 2020, 7:41 AM), https://www.bloomberg.com/news/articles/2020-03-11/keep-calm-and-wash-your-hands-britain-s-strategy-to-beat-virus [https://perma.cc/6F3S-9MWN] (describing the British reliance on nudges); Anne Meuwese, The Disjointed Dutch Policies to Fight COVID-19, The Regulatory Review (May 18, 2020), https://www.theregreview.org/2020/05/18/meuwese-disjointed-dutch-policies-fight-covid-19/ [https://perma.cc/EN8W-UU8U] (describing the role of soft law, advice and guidelines in the Netherlands); Josh Michaud, Sweden’s Coronavirus Strategy Should Not Be the World’s, Foreign Affairs (May 20, 2020), https://www.foreignaffairs.com/articles/sweden/2020-05-20/swedens-coronavirus-strategy-should-not-be-worlds [https://perma.cc/7EUF-CLH7] (describing the Swedish policies).

²²⁴ See Matt Hancock, Sec’y of State, Dep’t of Health and Soc. Care, Controlling the Spread of COVID-19: Health Secretary’s Statement to Parliament (Mar. 16, 2020), https://www.gov.uk/government/speeches/controlling-the-spread-of-covid-19-health-secretarys-statement-to-parliament [http://web.archive.org/web/20210315034158/https://www.gov.uk/government/speeches/controlling-the-spread-of-covid-19-health-secretarys-statement-to-parliament] (“[W]e are advising people against all unnecessary social contact with others and all unnecessary travel.”); Hutton, supra note 221 (promoting a hand-washing habit); Public Gatherings, Pub. Health Agency of Swed., https://www.folkhalsomyndigheten.se/the-public-health-agency-of-sweden/communicable-disease-control/covid-19/public-gatherings/ [https://perma.cc/5K6N-CTS4] (publishing “recommendation[s] for private events such as weddings, parties and funerals”).

²²⁵ See, e.g., Hale et al., supra note 6, at 3 (describing the “common measures” used by governments around the world).

²²⁶ Id.

²²⁷ Id.

²²⁸ Id. at 21–22.

²²⁹ Wendy E. Parmet & Michael S. Sinha, Covid-19 – The Law and Limits of Quarantine, 382 New England J. Med. e28(1), e28(1) (2020) (describing restrictions enacted around the globe).

²³⁰ See Michael D. White & Henry F. Fradella, Policing a Pandemic: Stay-at-Home Orders and What they Mean for the Police, 45 Am. J. Crim. Justice 702, 703 (2020) (in the United States violations of the mandates are “criminal offense[s] with potential sanctions that range from fines to jail time”).

²³¹ See Ferguson et al., supra note 35, at 3.

²³² See David Halpern, Inside the Nudge Unit: How Small Changes Can Make a Big Difference 266–99 (2015).

²³³ See Christopher Mayes, Governing Through Choice: Food Labels and the Confluence of Food Industry and Public Health Discourse to Create ‘Health Consumers’, 12 Soc. Theory & Health 376, 381 (2014).

²³⁴ For an evaluation of the death caused by the delayed response in the US, see Sen Pei, Sasikiran Kandula & Jeffery Shaman, Differential Effects of Intervention Timing on COVID-19 Spread in the United States, 1 (May 29, 2020) (preprint), https://www.medrxiv.org/content/10.1101/2020.05.15.20103655v2.full.pdf [https://perma.cc/G3QG-T636].

²³⁵ See Dennis Hummel & Alexander Maedche, How Effective Is Nudging? A Quantitative Review on the Effect Sizes and Limits of Empirical Nudging Studies, 80 J. Behav. & Experimental Econ. 47, 51 (2019) (describing the difference between statistical significance and magnitude).

²³⁶ The threshold of a 0.05 probability uses the standard alpha = 0.05, which is the threshold most commonly used in the social sciences. See Rex B. Kline, Beyond Significance Testing: Statistics Reform in the Behavioral Sciences 95–96 (2d ed. 2013).

²³⁷ See id. at 105, 110.

²³⁸ See Hummel & Maedche, supra note 233, at 48, 53.

²³⁹ Jacob Cohen, Statistical Power Analysis for the Behavioral Sciences 25 (2d ed. 1988).

²⁴⁰ See Hummel & Maedche, supra note 233, at 54 (noting that due to the publication bias this result reflects an “upper bound”).

²⁴¹ See Stefano DellaVigna & Elizabeth Linos, RCTs to Scale: Comprehensive Evidence from Two Nudge Units 2 (Nat’l Bureau of Econ. Research, Working Paper No. 27594, 2020).

²⁴² See Hummel & Maedche, supra note 233, at 54–55.

²⁴³ To be sure, the impact of mandates on behavior critically hinges on their enforcement. To the extent jurisdictions cannot enforce mandates effectively, their efficacy could be significantly curtailed.

²⁴⁴ See Zachary A. Bethune & Anton Korinek, Covid-19 Infection Externalities: Trading Off Lives vs. Livelihoods 2 (Nat’l Bureau of Econ., Working Paper No. 27009, 2020), https://www.nber.org/papers/w27009 (“[W]hen infected individuals engage in social or economic activity, they impose significant externalities on those with whom they interact.”).

²⁴⁵ See Bianca Nogrady, What the Data Say About Asymptomatic COVID Infections, 587 Nature 534, 534 (2020).

²⁴⁶ See Bryn Nelson, Too Little or Too Much? Missing the Goldilocks Zone of Hospital Capacity During Covid-19, BMJ, June 16, 2020, at 1.

²⁴⁷ Bethune & Korinek, supra note 242, at 1, 4.

²⁴⁸ See, e.g., Bucher et al., supra note 215, at 2252.

²⁴⁹ Cass Sunstein, a devout proponent of nudges, also acknowledges that in cases involving negative externalities “choice-preserving approaches might well prove inadequate.” See Cass R. Sunstein, Nudges that Fail, 1 Behav. Pub. Pol’y 4, 7 (2017).

²⁵⁰ See Susumu Cato et al., Inst. of Soc. Sci., U. Tokyo, The Effect of Soft Government Directives About COVID-19 on Social Beliefs in Japan 2 (2020) (preprint research report), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3577448 [https://perma.cc/9SCC-TW8L] (noting that in Japan, there “have been no lockdown measures analogous to those in East Asia, much of Europe, and many U.S. states, because the national and local governments lack the constitutional authority to enforce business closures or shelter-in-place orders”).

²⁵¹ See id. (“[T]he Japanese government has been limited to requests, nudges, and appeals to social obedience.”).

²⁵² See Sunstein, supra note 247, at 19.

²⁵³ See David Hagmann, Emily H. Ho & George Loewenstein, Nudging Out Support for a Carbon Tax, 9 Nature Climate Change 484, 488 (2019) (reporting experimental results suggesting that nudges “can backfire by reducing the likelihood that the most effective policies will be implemented”).

²⁵⁴ See Zamir & Teichman, supra note 15, at 177 (discussing the regulatory substitution effect).

²⁵⁵ See Sayed A. Quadri, COVID-19 and Religious Congregations: Implications for Spread of Novel Pathogens, 96 Int’l J. Infectious Diseases 219, 219 (2020) (noting that religious gatherings “could serve as a potential focal point for dispersal of novel pathogens”).

²⁵⁶ See South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613–14 (2020) (Roberts, J., concurring) (upholding California’s limitation on religious institutions); Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2603 (2020) (denying certiorari in a similar case arising in Nevada).

²⁵⁷ See, e.g., South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021) (barring California from enforcing a prohibition on indoor worship services); High Plains Harvest Church v. Polis, 141 S. Ct. 527, 527 (2020) (suspending a Colorado regulation capping attendance in houses of worship); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 74 (2020) (barring New York from enforcing limits on attendance at worship services); Robinson v. Murphy, 141 S. Ct. 972, 972 (2020) (suspending a capacity limit on houses of worship in New Jersey).

²⁵⁸ See Virginia Villa, Most States Have Religious Exemptions to COVID-19 Social Distancing Rules, Pew Research Ctr.: FactTank (Apr. 27, 2020), https://www.pewresearch.org/fact-tank/2020/04/27/most-states-have-religious-exemptions-to-covid-19-social-distancing-rules/ [https://perma.cc/S7MN-7RGN].

²⁵⁹ See id. (noting that in states that carved out religious exemptions to their regulations some churches chose to follow CDC guidelines).

²⁶⁰ This is the main framework within the traditional economic analysis of criminal law. See Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169, 204 (1968). For a later review, see Steven Shavell, Foundations of Economic Analyses of Law 473–530 (2004).

²⁶¹ See Becker, supra note 258, at 204.

²⁶² For an overview of the literature, see Zamir & Teichman, supra note 15, at 433–455.

²⁶³ See, e.g., Ehud Guttel & Alon Harel, Uncertainty Revisited: Legal Prediction and Legal Postdiction, 107 Mich. L. Rev. 467, 470 (2008) (probability estimates); Janice Nadler, Flouting the Law, 83 Tex. L. Rev. 1399, 1409–10 (2005) (fairness of the law); Jessica M. Nolan et al., Normative Social Influence Is Underdetected, 34 Personality & Soc. Psychol. Bull. 913, 920 (2008) (social norms).

²⁶⁴ See, e.g., Halpern, supra note 230, at 91.

²⁶⁵ See, e.g., Luke Kenton, Cops Shut Down Illicit Orthodox Brooklyn Yeshiva School Where More than 100 Children Without Masks Were Taking Classes While the Rest of the City Is on Lockdown, Daily Mail (May 19, 2020, 11:40 AM), https://www.dailymail.co.uk/news/article-8336051/NYPD-cops-60-children-taking-classes-Brooklyn-Orthodox-school-despite-coronavirus-lockdown.html [https://perma.cc/XL89-TXR8].

²⁶⁶ See, e.g., Erica Evans, Defying Lockdown Orders: Here’s Why These Business Owners Decided to Break the Rules and Open Up, Desert News (May 17, 2020, 10:00 PM), https://www.deseret.com/indepth/2020/5/17/21256650/coronavirus-covid-19-lockdown-orders-california-pennsylvania-business-owners-reopen-restaurants [https://web.archive.org/web/20201019182713/https://www.deseret.com/indepth/2020/5/17/21256650/coronavirus-covid-19-lockdown-orders-california-pennsylvania-business-owners-reopen-restaurants].

²⁶⁷ See, e.g., Lauren Zumbach, Illinois Wants All Shoppers to Wear Masks at the Grocery Store. Enforcing that Rule Is Trickier, Chi. Trib. (Apr. 24, 2020), https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-grocery-stores-face-masks-enforcement-20200423-meguzf23ffa65ddr7tei22z6fm-story.html [https://web.archive.org/web/20200714190554/https://www.chicagotribune.com/coronavirus/ct-coronavirus-illinois-grocery-stores-face-masks-enforcement-20200423-meguzf23ffa65ddr7tei22z6fm-story.html] (difficulty enforcing facemask mandate); Luke Money, Orange County Authorities Won’t Enforce Mask Requirement: ‘We Are Not the Mask Police’, L.A. Times (May 26, 2020, 3:48 PM), https://www.latimes.com/california/story/2020-05-26/orange-county-sheriff-wont-enforce-mask-requirement [http://web.archive.org/web/20210302161629/https://www.latimes.com/california/story/2020-05-26/orange-county-sheriff-wont-enforce-mask-requirement] (same).

²⁶⁸ See Lauren M. Johnson, To Get Around Stay-At-Home Orders, Spaniards Have Been Walking Some Unusual ‘Pets’, CNN (Apr. 24, 2020, 6:27 PM), https://www.cnn.com/2020/04/24/world/spanish-residents-walking-pets-trnd/index.html [https://perma.cc/H2UC-X6XZ] (describing the fish incident); see also, Angela Giuffrida, ‘This Is Not a Film’: Italian Mayors Rage at Virus Lockdown Dodgers, Guardian (Mar. 23, 2020, 6:56 AM), https://www.theguardian.com/world/2020/mar/23/this-is-not-a-film-italian-mayors-rage-coronavirus-lockdown-dodgers [https://perma.cc/6BS6-UD34] (describing lock down circumvention in Italy).

²⁶⁹ See Nadler, supra note 261, at 1404 (highlighting the possibility that “disproportionate punishments can promote lawbreaking among citizens”).

²⁷⁰ See supra notes 21–26 and accompanying text.

²⁷¹ See, e.g., Durairaj Maheswaran & Joan Myers-Levy, The Influence of Message Framing and Issue Involvement, 27 J. Marketing Res. 361, 361–62 (1990); Tverysky & Kahneman, supra note 65, at 453, 456.

²⁷² Sunstein, supra note 211, at 729.

²⁷³ See, e.g., J. S. Blumenthal-Barby & Hadley Burroughs, Seeking Better Health Care Outcomes: The Ethics of Using the “Nudge”, Am. J. Bioethics, Feb. 2012, at 4 (discussing salience in the context of health care); Christian Schubert, Green Nudges: Do They Work? Are They Ethical?, 132 Ecological Econ. 329, 332 (2017) (discussing eco-labeling).

²⁷⁴ See Carmine Gallo, Finding the Right Words in a Crisis, Harv. Bus. Rev., (Apr. 17, 2020), https://hbr.org/2020/04/finding-the-right-words-in-a-crisis [https://perma.cc/D8FH-4VFY].

²⁷⁵ See Christopher Hope & Hayley Dixon, The Story Behind ‘Stay Home, Protect the NHS, Save Lives’ - the Slogan that Was ‘Too Successful’, Telegraph (May 1, 2020, 7:06 PM), https://www.telegraph.co.uk/politics/2020/05/01/story-behind-stay-home-protect-nhs-save-lives/ [https://perma.cc/F3AA-EQ7P].

²⁷⁶ See id. (alluding to the British message).

²⁷⁷ See, e.g., Zamir & Teichman, supra note 15, at 34–36 (describing how vividness and other factors increase the availability effect).

²⁷⁸ See Hope & Dixon, supra note 273.

²⁷⁹ Zamir & Teichman, supra note 15, at 9–10.

²⁸⁰ For a review, see Simon Gächter, Human Prosocial Motivation and the Maintenance of Social Order, in supra note 133, at 28.

²⁸¹ See, e.g., Martijn J. van den Assem, Dennie van Dolder & Richard H. Thaler, Split or Steal? Cooperative Behavior When the Stakes Are Large, 58 Mgmt. Sci. 2, 3 (2012).

²⁸² See Christoph Engel, Dictator Games: A Meta Study, 14 Experimental Econ. 583, 606 (2011).

²⁸³ See Ernst Fehr & Simon Gächter, Altruistic Punishment in Humans, 415 Nature 137, 138 (2002).

²⁸⁴ See Bonell et al., supra note 14, at 1 (“‘Protect yourself’ messages will have limited overall impact among the general public because many consider themselves at low risk of severe consequences from COVID-19 infection.”).

²⁸⁵ See, e.g., Jean-Philippe Gouin et al., Socio-Demographic, Social, Cognitive, and Emotional Correlates of Adherence to Physical Distancing During the COVID-19 Pandemic: A Cross-sectional Study, 112 Canadian J. Pub. Health 17, 22 (2020) (finding that perceived benefits to others was a significant predictor of adherence to social distancing rules whereas perceived susceptibility to the risks of the virus was not); Stefan Pfattheicher et al., The Emotional Path To Action: Empathy Promotes Physical Distancing During the COVID-19 Pandemic, 31 Psychol. Sci. 1363, 1367 (2020) (finding that inducing empathy for those most vulnerable to the virus promotes the motivation to adhere to physical distancing).

²⁸⁶ See Jordan et al., supra note 26, at 9, 12 (studies 1 and 2).

²⁸⁷ See id. at 10 (study 2).

²⁸⁸ For an overview, see Daphna Lewinsohn-Zamir, Ilana Ritov & Tehila Kogut, Law and Identifiability, 92 Ind. L.J. 505, 509–19 (2017).

²⁸⁹ See, e.g., Tehila Kogut & Ilana Ritov, The Singularity Effect of Identified Victims in Separate and Joint Evaluations, 97 Organizational Behav. & Hum. Decision Process 106, 109 (2005).

²⁹⁰ See Karen E. Jenni & George Loewenstein, Explaining the “Identifiable Victim Effect”, 14 J. Risk & Uncertainty 235, 235 (1997).

²⁹¹ See Lewinsohn-Zamir, Ritov & Kogut, supra note 286, at 537 (“Charitable organizations commonly employ this approach, by featuring a single victim on their posters.”).

²⁹² See Peter D. Lunn et al., Motivating Social Distancing During the Covid-19 Pandemic: An Online Experiment, 265 Soc. Sci. & Med., no. 113478, 2020, at 1, 6.

²⁹³ See Nancy Grant Harrington et al., Message Design Approaches to Health Risk Behavior Prevention, in Handbook of Adolescent Drug Use Prevention Research 381, 386, 391 (Lawrence M. Scheier ed., 2015).

²⁹⁴ See Kahan et al., supra note 180, at 170.

²⁹⁵ See Zamir & Teichman, supra note 15, at 56–57 (reviewing the findings on sunk costs).

²⁹⁶ See generally Hal R. Arkes & Catherine Blumer, The Psychology of Sunk Cost, 35 Organizational Behav. & Hum. Decision Processes 124, 124 (1985).

²⁹⁷ See id. at 128 (finding that participants randomly assigned to pay full price for theater tickets attended more plays than those who had randomly paid a discounted price, because the sunk costs in the former group were higher).

²⁹⁸ Hannah Hagemann, Boris Johnson Outlines Plan to Ease Coronavirus Restrictions in England, Nat’l Pub. Radio (May 29, 2020, 9:29 PM), https://www.npr.org/sections/coronavirus-live-updates/2020/05/10/853538566/boris-johnson-outlines-plan-to-ease-coronavirus-restrictions-in-u-k [https://perma.cc/3XT5-CEGU].

²⁹⁹ Jill Lawless, UK U-Turns on Masks as Lockdown-Easing Steps Spark Confusion, Associated Press (May 11, 2020), https://apnews.com/a37f44148940f8344ec245b54b58a9ad [https://perma.cc/3Y9M-RN32].

³⁰⁰ Joshua Chaffin, New York Poised to Being Reopening as New Virus Cases Fall, Fin. Times (May 11, 2020), https://www.ft.com/content/f8d44024-ea4d-4d9a-ae21-80b9bb3e6db5 [https://perma.cc/4Q3B-PYEL] (Cuomo warning “against squandering the two months of sacrifice that have been required to bring the virus under control”); Mackenzie Wicker, Don’t Want to Waste the Sacrifices We’ve Made’: Buncombe Officials Address ‘Reopen’ Protests, Citizen Time (Apr. 20, 2020, 4:52 PM), https://www.citizen-times.com/story/news/local/2020/04/20/coronavirus-buncombe-health-officials-address-reopen-protests/5164350002/ [https://perma.cc/8LUK-RPY3] (“[W]e don’t want to waste the sacrifices we’ve made in our community by opening too early or too quickly.”); John Woolfolk, Coronavirus Q&A: Sara Cody on Testing, Overreacting, and When the County Will Reopen, Mercury News (May 5, 2020, 4:46 AM), https://www.mercurynews.com/2020/05/04/coronavirus-qa-santa-clara-county-health-officer-sara-cody-not-going-to-squander-the-sacrifices [https://web.archive.org/web/20210308202553/https://www.mercurynews.com/2020/05/04/coronavirus-qa-santa-clara-county-health-officer-sara-cody-not-going-to-squander-the-sacrifices/] (“With the economic and social destruction everyone’s endured, I for one am not going to squander the sacrifices everyone’s made.”).

³⁰¹ See, e.g., Jessica M. Nolan et al., Normative Social Influence Is Underdetected, 34 Personality & Soc. Psychol. Bull. 913, 920–21 (2008); Noah Goldstein, Robert B. Cialdini & Vladas Griskevicius, A Room with a Viewpoint: Using Social Norms to Motivate Environmental Conservation in Hotels, 35 J. Consumer Res. 472, 474–75 (2008).

³⁰² See, e.g., Bruno S. Frey & Stephan Meier, Social Comparisons and Pro-social Behavior: Testing “Conditional Cooperation” in a Field Experiment, 94 Am. Econ. Rev. 1717, 1718 (2004).

³⁰³ See, e.g., Ian Ayres, Sophie Raseman & Alice Shih, Evidence from Two Large Field Experiments that Peer Comparison Feedback Can Reduce Residential Energy Usage, 29 J. Law Econ. & Org. 992, 1015 (2013).

³⁰⁴ See, e.g., Bruno S. Frey & Benno Torgler, Tax Morale and Conditional Cooperation, 35 J. Comp. Econ. 136, 138 (2007).

³⁰⁵ See Gordon T. Kraft-Todd et al., Promoting Cooperation in the Field, 3 Behav. Sci. 96, 98 (2015) (reviewing the literature and concluding that “Social Interventions seem to be more effective than Cost–Benefit Interventions”).

³⁰⁶ See Urs Fischbacher, Simon Gächter & Ernst Fehr, Are People Conditionally Cooperative? Evidence from a Public Goods Experiment, 71 Econ. Letters 397, 403 (2001). For a later review, see Christian Thöni & Stefan Volk, Conditional Cooperation: Review and Refinement, 171 Econ. Letters 37 (2018).

³⁰⁷ See Fishbacher et al., supra note 304, at 397.

³⁰⁸ See Kraft-Todd et al., supra note 303, at 98 (“Making one’s contribution decision observable by others has consistently been found to increase cooperation.”).

³⁰⁹ See Erez Yoeli et al., Powering Up with Indirect Reciprocity in a Large Field Experiment, 110 Proc. Nat’l Acad. Sci. 10424, 10426 (2013).

³¹⁰ See Kraft-Todd et al., supra note 304, at 98 (“People are more likely to cooperate when they are told that others have cooperated, implying that cooperation is the social norm.”).

³¹¹ See Goldstein, Cialdini & Griskevicius, supra note 299, at 473–75.

³¹² See Van Bavel et al., supra note 14, at 463.

³¹³ Benjamin van Rooij et al., Compliance with COVID-19 Mitigation Measures in the United States 26 (Amsterdam L. Sch., Research Paper No. 2020-21, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3582626 [https://perma.cc/XNV8-534H] (reporting on data suggesting that “[t]he more Americans see others comply, the more likely they are to follow suit”); see Malouke Esra Kuiper et al., The Intelligent Lockdown: Compliance with COVID-19 Mitigation Measures in the Netherlands (Amsterdam L. Sch., Research Paper No. 2020-20, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3598215 [https://perma.cc/UJN8-MFA8] (same result in the Netherlands); see also Tim Bogg & Elizabeth Milad, Demographic, Personality, and Social Cognition Correlates of Coronavirus Guideline Adherence in a U.S. Sample, 39 Health Psychol. 1026, 1030 ( 2020) (reporting on a correlation between guideline adherence and perceived norms). But see, Emmeke Barbara Kooistra et al., Mitigating COVID-19 in a Nationally Representative UK Sample: Personal Abilities and Obligation to Obey the Law Shape Compliance with Mitigation Measures 25 (Amsterdam L. Sch., Research Paper No. 2020-19, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3598221 [https://perma.cc/BQ9C-LS6R] (finding no association between compliance with COVID-19 related measures in the United Kingdom and perceived social norms).

³¹⁴ See van Rooij et al., supra note 311, at 26 (noting that in the United States “[t]he data did not show that deterrence was associated with compliance”); Kuiper et al., supra note 311, at 25–26 (noting that in the Netherlands “no relation for severity of deterrence with compliance” was found); Kooistra et al., supra note 311, at 25 (noting that in the United Kingdom “[t]he data show no association between deterrence and compliance”).

³¹⁵ This may be less effective, however, in subgroups with countervailing norms (e.g., norms against mask-wearing), in situations where actual compliance is low, or where people already believe that overall compliance is high. See, e.g., Colleen A. Carter & William M. Kahnweiler, The Efficacy of the Social Norms Approach to Substance Abuse Prevention Applied to Fraternity Men, 49 J. Am. C. Health 66, 69 (2010) (social norms approach fails to change behavior when people are in a sub-culture with a conflicting norm); Dennis L. Thombs & Monair J. Hamilton, Effects of a Social Norm Feedback Campaign on the Drinking Norms and Behavior of Division I Student-Athletes, 32 J. Drug. Educ. 227, 241 (2002) (social norms approach fails to change behavior when people already know what their closest friends are doing).

³¹⁶ See Bonell et al., supra note 14, at 617 (“Images and accounts of widespread population adherence (rather than examples of non-adherence) can persuade ‘conditional co-operators’ (those whose willingness to help others is conditional on being aware of others doing so) to over-ride individual self-interest and to act in the collective interest.”).

³¹⁷ See id. at 618.

³¹⁸ See, e.g., Liam Stack, De Blasio Breaks Up Rabbi’s Funeral and Lashes Out Over Virus Distancing, N.Y. Times, April 28^th, 2020, https://www.nytimes.com/2020/04/28/nyregion/hasidic-funeral-coronavirus-de-blasio.html [https://perma.cc/2AK9-VYM9] (describing Mayor’s De Blasio social media response to a case of public violation of social distancing rules).

³¹⁹ See William Sposato, Japan’s Halfhearted Coronavirus Measures Are Working Anyway, Foreign Pol’y (May 14, 2020, 4:01 PM), https://foreignpolicy.com/2020/05/14/japan-coronavirus-pandemic-lockdown-testing/ [https://perma.cc/6RNE-WMXN].

³²⁰ See Carlie Porterfield, See Photos of Eerily Deserted Places Around the World as a Result of the Coronavirus, Forbes (Mar. 23, 2020, 4:20 PM), https://foreignpolicy.com/2020/05/14/japan-coronavirus-pandemic-lockdown-testing [https://perma.cc/TV42-W3CU].

³²¹ See Kuiper et al., supra note 311, at 6–7.

³²² For an overview, see David E. Pozen, We Are All Entrepreneurs Now, 43 Wake Forest L. Rev. 283, 305–10 (2008).

³²³ See Cass R. Sunstein, Social Norms and Social Roles, 96 Colum. L. Rev. 903, 929 (1996).

³²⁴ Id.

³²⁵ See, e.g., B. Kelsey Jack & María P. Recalde, Leadership and the Voluntary Provision of Public Goods: Field Evidence from Bolivia, 122 J. Pub. Econ. 80, 92 (2015) (field experiment); Simon Gächter et al., Who Makes a Good Leader? Cooperativeness, Optimism, and Leading-by-Example, 50 Econ. Inquiry 953, 964–66 (2012) (lab study).

³²⁶ See Michael Eichenseer, Leading by Example in Public Good Games: What Do We Know? 2 (Aug. 24, 2019) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3441638 [https://perma.cc/W2TZ-GMW7] (describing the payoff structure in a public goods game).

³²⁷ See Jack & Recalde, supra note 323, at 92.

³²⁸ Id.

³²⁹ See Tom Krisher & David Eggert, Trump Could Violate Ford Face Mask Requirement on Plant Tour, Associated Press (May 19, 2020), https://apnews.com/9ca93f81c2aa227184247b4e19c46e86 [https://perma.cc/JFF6-RQEG]. In fact, President Trump has gone beyond mere incompliance, and some of his messages on social media could be read to be encouraging defiance. See Michael D. Shear & Sarah Mervosh, Trump Encourages Protest Against Governors Who Have Imposed Virus Restrictions, N.Y. Times (Apr. 29, 2020), https://www.nytimes.com/2020/04/17/us/politics/trump-coronavirus-governors.html [https://perma.cc/ZSC8-X2CN].

³³⁰ Rebecca Klar, Pence Posts, Deletes Photo of Trump Campaign Staff Without Face Masks, Not Social Distancing, Hill (June 11, 2020, 9:51 AM), https://thehill.com/homenews/administration/502225-pence-posts-deletes-photo-trump-campaign-staff-without-face-masks-not [https://perma.cc/9D3R-CHHS].

³³¹ See Josh Breiner, Netanyahu Violated Coronavirus Regulations by Meeting Son While Quarantined, Haaretz (Apr. 9, 2020), https://www.haaretz.com/israel-news/.premium-netanyahu-denies-violating-coronavirus-regulations-when-photographed-with-son-1.8754841 [https://perma.cc/W5WC-SAA3].

³³² See Ashley Cowburn, Neil Ferguson: Government Coronavirus Adviser Quits After Home Visits from Married Lover, Independent (May 5, 2020, 9:11 PM), https://www.independent.co.uk/news/uk/politics/neil-ferguson-resigns-coronavirus-antonia-staats-social-distancing-government-a9500581.html [https://perma.cc/A26U-3L7D].

³³³ See, e.g., Siobhán O’Grady, Top Officials Around the World Keep Getting Caught Breaking Lockdown Rules, Wash. Post (May 26, 2020, 1:00 AM), https://www.washingtonpost.com/world/2020/05/06/top-officials-around-world-keep-getting-caught-breaking-lockdown-rules/ [https://perma.cc/6SB8-9RGY].

³³⁴ See Sibony, supra note 18, at 350–55 (comparing the behavior of leaders in numerous countries during March of 2020 and tying it to public behavior).

³³⁵ Lucas Argentieri Mariani, Jessica Gagete-Miranda & Paula Rettl, Words Can Hurt: How Political Communication Can Change the Pace of an Epidemic, Covid Econ., May 1, 2020, at 104, 128–29.

³³⁶ See supra Section II(B)(5).

³³⁷ See, e.g., Dan M. Kahan et al., The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks, 2 Nature Climate Change 732, 732 (2012) (finding that people with greater scientific literacy are most likely to display cultural polarization in their risk perceptions).

³³⁸ Kahan et al., supra note 176, at 511.

³³⁹ Id. at 512.

³⁴⁰ Bursztyn et al., supra note 202, at 1–2; supra notes 202–04 and accompanying text.

³⁴¹ Guy Grossman et al., Political Partisanship Influences Behavioral Responses to Governors’ Recommendations for COVID-19 Prevention in the United States 15 (Apr. 22, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3578695 [https://perma.cc/2H6V-FK9S] (finding that stay-at-home messaging by Republican governors “was stronger in Democratic counties and moderate Republic[an] counties than conservative strongholds”). The authors, however, also suggested that there may have been “backlash effects” in the most conservative Republican counties, where stay-at-home tweets from Republican governors may have produced “either indifference or outright hostility” for contradicting national-level party messaging. Id. at 15; see also Makoto Yano, COVID-19 Pandemic and Politics: The Cases of Florida and Ohio 1–2, 8–9 (Research Inst. of Econ., Trade & Indus., Discussion Paper No. 20-E-040, 2020), https://www.rieti.go.jp/jp/publications/dp/20e040.pdf [https://perma.cc/7L8Y-9ZKJ] (finding significantly different trajectories of the epidemic in Ohio and Florida, which both had Republican state leadership but whose governors adopted different approaches to COVID-19).

³⁴² See supra notes 195–96 and accompanying text.

³⁴³ Kahan et al., supra note 188, at 169 (“[W]hen shown that [risk] information in fact supports or is consistent with a conclusion that affirms their cultural values … individuals are more likely to consider the information open-mindedly.”); see also Geoffrey L. Cohen et al., Bridging the Partisan Divide: Self-Affirmation Reduces Ideological Closed-Mindedness and Inflexibility in Negotiation, 93 J. Personality & Soc. Psychol. 415, 415 (2007) (“[A]ffirmations of personal integrity (vs. nonaffirmation or threat) can reduce resistance and intransigence but … this effect occurs only when individuals’ partisan identity and/or identity-related convictions are made salient.”); Kahan et al., Cultural Cognition and Public Policy: The Case of Outpatient Commitment Laws, 34 L. & Hum. Behav. 118, 135 (2010) (“Individuals conform their factual perceptions to their values in part to avoid the psychic costs of believing that societal well-being depends on either restricting practices essential to their identities or promoting activities inimical to them.”).

³⁴⁴ Sunstein & Thaler, supra note 19, at 60.

³⁴⁵ We Need You to #MaskUpHoosiers, In.gov, https://www.coronavirus.in.gov/maskuphoosiers/ [https://perma.cc/U3HF-6KQA] (last updated Apr. 19, 2021, 10:24 AM).

³⁴⁶ See Dryhurst et al., supra note 178, at 5. This recommendation is in tension with this Section’s earlier discussion of pro-social messaging. See supra notes 278–285 and accompanying text. But one size need not fit all; campaigns can be tailored differently for different groups.

³⁴⁷ These messages may also be effective among communitarians in times of crisis. See Johannes Leder et al., Even Prosocially Oriented Individuals Save Themselves First: Social Value Orientation, Subjective Effectiveness and the Usage of Protective Measures During the COVID-19 Pandemic in Germany 2 (Mar. 31, 2020) (preprint), https://psyarxiv.com/nugcr/ [https://perma.cc/6D9S-2DZS] (finding that even among individuals high in prosocial values, self-protective behaviors were more frequent than other-regarding behaviors).

³⁴⁸ Governor Kate Brown, PSA, A Mask is Just a Mask, YouTube (July 1, 2020), https://www.youtube.com/watch?v=tWpnX-fEq2U [https://perma.cc/48FD-TS77].

³⁴⁹ See supra notes 213–17 and accompanying text.

³⁵⁰ See Thaler, Sunstein & Balz, supra, note 213, at 428–30 (examining policy tools).

³⁵¹ See, e.g., N.C. Exec. Order No. 131 § 1(B) (Apr. 9, 2020), https://files.nc.gov/governor/documents/files/EO131-Retail-Long-Term-Care-Unemployment-Insurance.pdf [https://perma.cc/G44M-7PAU]; Mich. Exec. Order No. 2020-114 § 8(f) (June 5, 2020), https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-531123--,00.html [https://perma.cc/JD88-64V5].

³⁵² See Alex Wigglesworth, Social Distancing Circles Drawn on Grass at San Francisco Parks, L.A. Times (May 22, 2020, 10:23 AM), https://www.latimes.com/california/story/2020-05-22/social-distancing-circles-drawn-on-grass-at-san-francisco-parks [https://perma.cc/85ZZ-D2XZ]; Hilary Whiteman, Domino Park Circles Keep New York City Sunbathers in Check, CNN: Style (May 19, 2020), https://www.cnn.com/style/article/domino-park-new-york-city-circles-social-distancing/index.html [https://perma.cc/X6XH-AMP5].

³⁵³ A description of the initiative along with the process and relevant legal procedures was publicized on the city’s website. See Preserving Democracy – Preserving Health, Tel Aviv-Yafo, https://www.tel-aviv.gov.il/Pages/MainItemPage.aspx?WebID=3af57d92-807c-43c5-8d5f-6fd455eb2776&ListID=81e17809-311d-4bba-9bf1-2363bb9debcd&ItemId=1017 [https://perma.cc/C3J2-6NK3].

³⁵⁴ See Yasmeen Serhan, Israel Shows Us the Future of Protest, Atlantic (Apr. 23, 2020), https://www.theatlantic.com/international/archive/2020/04/protest-demonstration-pandemic-coronavirus-covid19/610381/ [https://perma.cc/35Q3-WMZU] (providing photos of more than 2,000 protestors gathered in Rabin Square, each standing six feet apart on designated markers).

³⁵⁵ See, e.g., Kooistra et al., supra note 311, at 26 (reporting an association between capacity to comply and compliance).

³⁵⁶ See, e.g., Jim E. Krier & Christopher Serkin, The Possession Heuristic, in Law and Economics of Possession 149, 150–52 (Yun-chien Chang ed., 2015) (reviewing the game-theoretical literature); Peter DeScioli & Bart J. Wilson, The Territorial Foundations of Human Property, 32 Evolution & Hum. Behav. 297, 303 (2011) (experimental findings on human protection of territory and “ownership convention”).

³⁵⁷ See, e.g., Ned Lamont, State of Conn., Reopen Connecticut Safer. Stronger. Together. (June 6, 2020), https://portal.ct.gov/-/media/DECD/Covid_Business_Recovery-Phase-2/0617CTReopens_IndoorDining__C4_V1.pdf [https://perma.cc/B8BH-PZLG] (review of rules applying to restaurants in Connecticut); Cal. Dep’t of Pub. Health et al., COVID-19 Industry Guidance: Retail (July 2, 2020), https://files.covid19.ca.gov/pdf/guidance-retail.pdf [https://perma.cc/LDC9-7VRY] (review of rules applying to retail in California).

³⁵⁸ See Thaler, Sunstein & Balz, supra note 213, at 433.

³⁵⁹ For recent systematic reviews and meta-analyses, see Brigid M. Gillespie et al., Effect of Using a Safety Checklist on Patient Complications After Surgery—Systematic Review and Meta-Analysis, 120 J. Am. Soc. Anesthesiologists 1380 (2014), and Christine S. M. Lau & Ronald S. Chamberlain, The World Health Organization Surgical Safety Checklist Improves Post-Operative Outcomes: A Meta-Analysis and Systematic Review, 7 Surgical Sci. 206 (2016).

³⁶⁰ See Thaler, Sunstein & Balz, supra note 213, at 433.

³⁶¹ To be sure, checklists do come with a set of problems. They could, for example, lead to technocratic compliance that does not truly aim to reduce risk. See, e.g., Daniel E. Ho, Sam Sherman & Phil Wyman, Do Checklists Make a Difference? A Natural Experiment from Food Safety Enforcement, 15 J. Empirical Legal Stud. 242, 243 (2018) (finding that in some cases, “[c]hecklists, rather than solving the problem of bureaucracy, may create it”).

³⁶² See, e.g., Cal. Dep’t of Pub. Health et al., Cal/OSHA COVID-19 General Checklist for Day Camps (July 17, 2020), https://files.covid19.ca.gov/pdf/checklist-daycamps--en.pdf [https://perma.cc/Q766-FM9Q]; Cal. Dep’t of Pub. Health et al., COVID-19 General Checklist for Construction Employers (July 2, 2020), https://files.covid19.ca.gov/pdf/checklist-construction.pdf [https://perma.cc/D9DQ-7443].

³⁶³ See, e.g., Tobias Beck et al., Can Honesty Oaths, Peer Interaction, or Monitoring Mitigate Lying?, 163 J. Bus. Ethics 467, 476 (2018) (reporting that “honesty oaths were able to significantly reduce payoff-increasing lies”); Nicolas Jacquemet et al., Truth Telling Under Oath, 65 Mgmt. Sci. 426, 432 (2019) (reporting that taking a truth-telling “oath decreases lying when lies are made explicit”).

³⁶⁴ See Eyal Pe’er & Yuval Feldman, Honesty Pledges for the Behaviorally-based Regulation of Dishonesty 1 (June 1, 2020) (working paper), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3615743 [https://perma.cc/2PVG-YTG8].

³⁶⁵ Id. at 12–13, 18.

³⁶⁶ Connecticut has implemented such a mandatory self-certification program. See Self-Certify Your Business, Ct.gov, https://service.ct.gov/recovery/s/?language=en_US [https://perma.cc/P2S2-QEFL].

³⁶⁷ See Symptom Self Checking, Colum. U. City N.Y.C., https://covid19.columbia.edu/content/symptom-self-checking [https://perma.cc/ZB4Y-G8HZ] (describing the “symptom self-check” process).

³⁶⁸ See Illinois Community Pledge, U. Ill. Urbana-Champaign https://covid19.illinois.edu/pledge/ [https://perma.cc/QR4S-M22S] (describing “voluntary” daily personal health checklist).

³⁶⁹ See, e.g., Melissa Bateson, Daniel Nettle & Gilbert Roberts, Cues of Being Watched Enhance Cooperation in a Real-World Setting, 2 Biology Letters 412, 412 (2006).

³⁷⁰ See Dominic King et al., “Priming” Hand Hygiene Compliance in Clinical Environments, 35 Health Psych. 96, 99–100 (2016).

³⁷¹ See Gaby Judah et al., Experimental Pretesting of Hand-Washing Interventions in a Natural Setting, 99 Am. J. Pub. Health S405, S407–08 (2009) (reporting that in a field experiment using different messages in a public restroom, results showed that messaging increased compliance by as much as 12.1% from the control group).

³⁷² See, e.g., Alison M. Buttenheim & David A. Asch, Making Vaccine Refusal Less of a Free Ride, 9 Hum. Vaccines & Immunotherapeutics 2674, 2675 (2013); Alexander Cappelen, Ottar Mæstad & Bertil Tungodden, Demand for Childhood Vaccination, 37 F. Dev. Stud. 349, 349 (2010); Frederick Chen & Ryan Stevens, Applying Lessons from Behavioral Economics to Increase Vaccination Rates, 32 Health Promotion Int’l 1067, 1067–68 (2017).

³⁷³ George Loewenstein & Nick Chater, Putting Nudges in Perspective. 1 Behav. Pub. Pol’y 26, 44 (2017).

³⁷⁴ See Bubb & Pildes, supra note 19, at 1673–77 (criticizing existing legal views on the behavioral approach to fuel economy); Loewenstein & Chater, supra note 371, at 45 (reviewing the behavioral science on climate change and concluding that “there is no way to escape the necessity for stronger policies that either change prices (e.g. a carbon tax or cap and trade) or involve regulation (e.g. far more stringent standards on automobile fuel efficiency”)).