A growing body of normative work, going under the name of “behavioral welfare economics,” explores how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost-benefit analysis, and regulatory policy. The best approach adopts a working presumption in favor of respect for those choices, but only so long as they are adequately informed and sufficiently free from behavioral biases. That presumption can be specified in various ways, for example by exploring what informed people choose under conditions that are most likely to eliminate behavioral biases. Behavioral welfare economics, and behaviorally informed analysts of law, should be committed to the working presumption and its practical specifications, with humility and aware of the inevitability of taking a stand on some fundamental philosophical issues.
