Alexandra Kemmerer (Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law), Christoph Möllers (Humboldt-Universität zu Berlin; Wissenschaftskolleg zu Berlin), Maximilian Steinbeis, & Gerhard Wagner (Humboldt University School of Law; Erasmus School of Law; University of Chicago Law School) have posted Choice Architecture in Democracies: Exploring the Legitimacy of Nudging - Preface (Forthcoming in: Alexandra Kemmerer/Christoph Möllers/Maximilian Steinbeis/Gerhard Wagner (eds.), Choice Architecture in Democracies. Exploring the Legitimacy of Nudging (Recht im Kontext 6), Nomos, Baden-Baden/Hart Publishing, Oxford 2016) on SSRN. Here is the abstract:
Experts advise governments as to common traits in human behavior that need to be taken into account when designing rules for situations of decision-making by individuals – for instance in the fields of health, retirement provisions, or education. »Choice architects« shape situations of decision-making in such a way that the individual will take the »right« decision with a higher probability than in an alternative landscape. Based on insights from behavioral economics, tools have been developed in order to motivate the citizen towards more »reasonable« conduct. The European Commission has been rewarding the reasonable, self-determined individual for a long time, and in the German Federal Chancellery, too, the search for behavioral economic guidelines toward efficient and cost-saving policies is under way. The »how« of state interventions for the facilitation of a good life is being widely discussed. The »if«, however, seems to be the more pressing issue. Are citizens’ virtues the business of the state? May the state influence and »nudge« its citizens, or even paternalistically act as their benevolent guardian? Are there constitutional limits to »liberal paternalism«? What about freedom of the individual, dignity, autonomy, and self-determination in a democracy?
This volume brings together a collection of contributions that explore the promises and dark sides, the limits and possibilities of behaviorally informed regulatory strategies. All chapters in the first part of the book were, in substance, presented and discussed at the Verfassungsblog Conference »Choice Architecture in Democracies: Exploring the Legitimacy of Nudging« which we convened at Humboldt-Universität zu Berlin in January 2015 – with the exception of Morag Goodwin’s chapter that had been discussed in a preceding Recht im Kontext conference on Human Dignity held at the Wissenschaftskolleg zu Berlin in July 2013 and is now also part of the edited volume »Human Dignity in Context« (Dieter Grimm / Alexandra Kemmerer / Christoph Möllers, eds., Recht im Kontext 5). Goodwin’s paper inspired our interest in a constitutionalist perspective on choice architecture and behaviorally informed regulation, and is reprinted here with thanks. Christopher McCrudden and Jeff King went even one step further and turned the gist of their two separate conference papers into a joint contribution, put up for discussion in the Berlin Seminar Recht im Kontext and at the Max Planck Institute for Human Development. The blog posts republished in the second part of the book were first published as an Online Symposium on Verfassungsblog in April 2015, taking further the discussion we had during three vibrant conference days in Berlin.
