TY - JOUR
T1 - What's Choice Got to Do With It? Addressing the Pitfalls of Using Choice-Architecture Discourse Within Poverty Law
AU - Cohen-Rimer, Yael
N1 - Publisher Copyright:
© 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
PY - 2023/7
Y1 - 2023/7
N2 - In legal scholarship, as in other fields, it would seem that ‘choice-architecture’ (where states attempt to ‘move’ people toward desired behaviour) is everywhere. This paper argues that such blanket adoption of choice-architecture discourse cannot be based on generic terms, nor on imagined or assumed choices. Rather, I contend, the specific characteristics of each legal field – here, poverty law – should be considered when debating and reviewing choice-architecture. I point to the dangers of using choice-discourse in the context of poverty law, illuminate significant weaknesses in choice-architecture theory, and thus justify limitations on the use of incentives and nudges in this context. I propel the poverty-as-exception argument, advancing the development of poverty law toward being considered a distinct field of law. The contributions of this paper are thus both theoretical and normative, shifting focus onto those exposed to choice-architecture, and to the expressive harms caused by assuming choice where there is none.
AB - In legal scholarship, as in other fields, it would seem that ‘choice-architecture’ (where states attempt to ‘move’ people toward desired behaviour) is everywhere. This paper argues that such blanket adoption of choice-architecture discourse cannot be based on generic terms, nor on imagined or assumed choices. Rather, I contend, the specific characteristics of each legal field – here, poverty law – should be considered when debating and reviewing choice-architecture. I point to the dangers of using choice-discourse in the context of poverty law, illuminate significant weaknesses in choice-architecture theory, and thus justify limitations on the use of incentives and nudges in this context. I propel the poverty-as-exception argument, advancing the development of poverty law toward being considered a distinct field of law. The contributions of this paper are thus both theoretical and normative, shifting focus onto those exposed to choice-architecture, and to the expressive harms caused by assuming choice where there is none.
UR - http://www.scopus.com/inward/record.url?scp=85161146972&partnerID=8YFLogxK
U2 - 10.1111/1468-2230.12796
DO - 10.1111/1468-2230.12796
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AN - SCOPUS:85161146972
SN - 0026-7961
VL - 86
SP - 951
EP - 983
JO - Modern Law Review
JF - Modern Law Review
IS - 4
ER -