What's Choice Got to Do With It? Addressing the Pitfalls of Using Choice‐Architecture Discourse Within Poverty Law
| Published date | 01 July 2023 |
| Author | Yael Cohen‐Rimer |
| Date | 01 July 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12796 |
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Modern Law Review
DOI:10.1111/1468-2230.12796
What’s Choice Got to Do With It? Addressing
the Pitfalls of Using Choice-Architecture Discourse
Within Poverty Law
Yael Cohen-Rimer∗
In legalscholarship, as inother elds, itwould seem that‘choice-architecture’ (where statesat-
tempt 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, thespecic character istics of eachlegaleld –
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 signi-
cant weaknesses in choice-architecturetheor y,and thus justify limitations on the use of incentives
and nudges in this context. I propel the poverty-as-exception argument, advancing the devel-
opment of poverty law toward being considered a distinct eld 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.
INTRODUCTION
In 2014,Grant wrote that ‘the time is right to reconsider the way we think about
legitimate and illegitimate uses of incentives’.1Since then,not only has the use
of incentives, nudges, and, generally,policymechanismsintendedtoaect and
change people’s choices2not diminished – it has grown.3Morespecically, the
reconsideration and debate Grant called for almost a decade ago have yet to
inltrate the welfare law system,where incentives and ‘soft’ choice-architecture
∗Visiting PostDoc,Harvard Law School (2022-23).This paper is the result of research done during my
postdoc position in Tel-Aviv University,in the Edmond Safra Center for the Ethics, whose support I
am verythankful for. For illuminatingcomments andthought-provoking discussions, Ithank David
Enoch, Hila Shamir, HanochDagan, Tamar Kr icheli-Katz, Yam Maayan, Tomas Midttun Tobiassen,
Ida Gundersby Rognlien, Gianluca Busilacchi,Irit Ballas, and the participants of the Safra fellows’
colloquium. Special thanks go to the anonymous reviewers and the editing sta of the Modern Law
Review. As much as I stand on others’shoulders, all remaining mistakes are still,of cour se, my own.
1Ruth Grant, ‘Rethinking the Ethics of Incentives’(2015) 22 Journalof Economic Methodology 1.
2I refer to all of these as forms of ‘choice-architecture’ and explain why I group them together
in the coming pages.
3RainerBaisch, ‘Nudging: Information, ChoiceArchitecture andBeyond’inKlaus Mathisand
Avishalom Tor (eds), Nudging: Possibilities, Limitations and Applications in European Law and Eco-
nomics (Lucerne: Springer, 2016); CassR.Sunstein, ‘Nudg ing andChoice Architecture: Ethical
Considerations’(2015) Har vardJohn M. Olin Discussion Paper Series,Discussion Paper No 809;
Heidi M. Hurd, ‘FudgingNudging:WhyLiber tarianPaternalism Is theContradiction It Claims
It’s Not’ (2016) 14Geo.J.L. & Pub. Pol’y 703; EyalZamir andDoron Teichman, Behavioral Law
and Economics (New York,NY: OUP, 2018).
© 2023TheAuthors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(4) MLR 951–983
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Choice Discourse in Poverty Law
techniques such as nudges are held up as signs of progress in the desirable di-
rection, a lesserevil comparedtoblunt regulationthrough penalisation, forex-
ample.4As a legal eld, welfare law has yet to be thoroughly considered by the
scholarship when referring to choice-architecture,5unliketax,health, orlabour
law, all ofwhichhave beendiscussed extensively.6
In this paper,I will claim that using choice-discourse and choice-architecture
in welfare law,7and specically in the context of poverty,is problematic. My
rst argument is that, since the choices of people-in-poverty are limited8and
complex, attempting to use choice-architecture and paternalistic laws addressed
at this collective leads to ill-tting rules – laws that involve factual and legal
assumptions that have no basis in the reality of the very people they are designed
to serve.My second claim goes to the rhetoric – or expressive – aspect of law and
the exclusionary aspect of poverty.I contend that such ill-tting rules exacerbate
the exclusion that is,in itself ,a part of poverty, thus worsening poverty instead of
alleviating it. Thiseect occur s viatwo problematicrhetorical ‘messages’ ofthe
law:rst, that there is one ‘right’ choice (the decision the law is encouraging
the claimants toward making (in short,the paternalistic aspect);and second,
that there is actually a choice.When the law presumes there to be freedom
to select between options,but reality oers no such real choice,it becomes an
exclusionary tool that works not to ameliorate social poverty but to deepen it.
Regarding the rst problematic idea propelled by the centricity of choice-
discourse in poverty law – such as housing aid laws,minimum income laws,
poverty-alleviation programmes such as baby-bonds, and so on – I identify
a consolidation of known problems within policymakers’ approaches.Prime
among these are the individualistic,market-oriented focus (as opposed to a per-
spective that is concerned with infrastructural issues) and the detached, ‘med-
ical’9approach of policymakers toward the problem of poverty.Both mindsets
4 Avishai Benish and David Levi-Faur, ‘The Expansion of Regulation in Welfare Governance’
(2020) 691 The Annals of the American Academy of Political and Social Science 17; David Levi-Faur,
‘The WelfareState: A Regulatory Perspective’(2014) 92 Public Administration 599;Clareta Treger,
‘When Do People Accept GovernmentPaternalism? Theor y and Experimental Evidence’(2023)
17 Regulation & Governance 195.
5Some, albeit not many, references to people-in-poverty regarding nudges have been made in the
literature,but the discussion has remained generalised and not focused on welfare law, which
is myintentionhere. See, for example, Jessica L. Roberts, ‘Nudge-Proof: DistributiveJustice
and the Ethics of Nudging’ (2018) 116 Michigan Law Review 23;DeniseDe Ridderet al, ‘Sim-
ple Nudges That Are Not So Easy’ (2020) Behavioural Public Policy 1; Douglas MacKay, ‘Basic
Income, Cash Transfers, and Welfare StatePaternalism’ (2019) 27Journal of Political Philosophy
422; Linda Thunström, BenGilbert, andChian JonesRitten, ‘Nudges ThatHurtThoseAl-
ready Hurting: Distr ibutional andUnintended Eects ofSalience Nudges’ (2018)153 Journal of
Economic Behavior & Organization 267.
6Sunstein, n3 above; Zamir andTeichman, n 3above.
7By ‘welfare law’ I mean herepolicies and legal constr uctions that areaimed at people-in-poverty,
to sustain their income and subsistence above a specied threshold.See MacKay,n 5 above, for
a similar framing.
8I do not wish to imply here that their capability to make choices is limited, only that their reality
is such that they have fewer opportunities to exercise choice or a more limited array of viable
options to choose from.
9This term is used in disability studies literature to refer to attempts to ‘cure’ people with disabil-
ities insteadof focusingon thesocial responseto, and treatment of , their disability.Iborrow it
throughout thispaper toexplain how policymakersattempt to‘cur’ or ‘x’ people-in-poverty
rather than endeavouring to address the social response to their situation.
952 © 2023TheAuthors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(4) MLR 951–983
Yael Cohen-Rimer
lead to a paradigm in which the focus is on the individual living in poverty as
the origin of – the reason for – their own hardship and, thus,the source of its
potential cure. Fromthisperspective, people-in-povertyneedto be‘xed’ –
their decisions changed – for poverty to be alleviated.This individual-centred
approach stems from the roots of liberal thought but is amplied by the lack or
limited representationofpeople-in-poverty inthedecision-makingsphere, as
well as by the well-documented biasand stigma toward the poor and the in-
tersectionalitythat entanglespoverty withrace, gender,andothermarginalised
identities.
Due to the consolidation of individual/medical approaches within the
poverty context and the ‘expressive’ harms caused by those approaches,my
claim isthis: there is no such thing as a ‘good’ incentive-driven,choice-architecture-
based policy in the context of poverty. This is not to say that there could not be
policies implemented to address problems of poverty and inequality.But the
baseline fromwhich policymakersapproach theproblem,Isuggest,isof utmost
importance. For example,let us say that the limited participation in higher ed-
ucation among young people who have grown up in poverty is identied as
a pressing social problem.On the one hand, the authorities could tackle this
problem by adopting a policy of ‘motivating’ young adults to pursue a uni-
versity education,for example by oering nancial incentives to anyone on a
low income who aspires to take a degree course.On the other hand, the same
problem could be addressed by policies that take a more structural approach,
such as mapping the obstacles to participation within the higher education sys-
tem. This processmight identify, for instance, hightuitionfees, geographical
and accessibilityissues(distance touniversityfrom home, availability ofaord-
able public transport, availability of suitable accommodation close to campus,
etc), issues relating to social and cultural capital that impede participation in ex-
tracurricular activities and aect the ability of higher education to truly equalise
the inequalities that surface at earlier stages in the state education system, and
so on.
While the rst policy targets individuals and attempts to ‘x’ their ‘awed’
decisions within the existing systemic infrastructure,the second targets social
infrastructural problems and thus opens the oor to discussions of social re-
sponsibility. Rather than providing a ‘medical’response (attempting to cure a
symptom), the latter approach seeks to understand and address the underlying
causes of that symptom, by asking questions such as: What is our common goal
in f acilitating youngadults’par ticipation inhigher education?And whatis their
reality, such thattheydo not participate at present?
In presenting my argument,I walk in the footsteps of Iris Marion Young10
and Virginia Mantouvalou11 in addressing the question of responsibility for
poverty and inequality and,specically,the place of law in tackling this
10Iris Mar ion Young,‘From Personal to Political Responsibility’ in Responsibility for Justice (New
York, NY:OUP,2011).
11VirginiaMantouvalou, ‘Structuresof Injustice, theLaw, and Exploitative Work’ (2022) UCL
Faculty of Laws Research Paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4016793
[https://perma.cc/9QUK-GASK].
© 2023TheAuthors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(4) MLR 951–983953
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