Traditionally, economic theory has treated people as wholly rational actors – when presented with a choice, we choose the utility-maximizing option, regardless of what the default or status quo might be. Recent social science research has shown that real people don’t always act so rationally; we are influenced by social pressures. One of the most powerful norms that drive behavior are default rules. As Cass Sunstein describes them, defaults are invisible “nudges.” They don’t force us to choose one way or another, but they can make us lean in a particular direction.
The impact that defaults can have on individual decision-making and combatting inertia can be seen in a variety of settings. Just over a year ago, Oregon became the first state to adopt automatic voter registration, which makes registering to vote the default at the state’s Driver and Motor Vehicle Services Division (DMV) unless you affirmatively opt out of registration. While the difference may seem slight, more than 50,000 citizens have already been added to the rolls. It’s still unclear how the law impacted the number of citizens who voted in Oregon’s 2016 presidential primary election, but the efficacy of default rules and opt-out systems has been demonstrated in a range of settings. For example, companies that have experimented with default settings for 401(k) retirement plans found that, when the system’s default option is to participate, the percentage of employees contributing to 401(k) plans is significantly higher than with an opt-in system. Similarly, in Europe, some countries have adopted an opt-out system for organ donation, in which a deceased person is presumed to wish to donate her organs unless she affirmatively opted out of donating. Rates of organ donation in these countries are substantially higher than European nations with an opt-in system, even accounting for cultural and religious differences.
Should pro bono work be the “default” for every lawyer? The current pro bono distribution system spends an in inordinate amount of time and resources recruiting individual attorneys. We can envision a system in which courts, legal services, and pro bono programs reverse those operating assumptions. Without mandating pro bono, could we consider all lawyers to be volunteers, unless they specifically opt-out of participation? This fundamental shift in culture and perspective would require us to create and implement more streamlined and efficient systems for distributing pro bono work and would hold the promise of significantly greater attorney participation. It would also require more resources for the public interest groups and courts that administer such systems.
We want to hear from you. Could the power of defaults be harnessed effectively to increase pro bono efforts, impact, and access to justice? How?
Hat tip to PBI intern CJ Rydberg for his help with this post.