Nudging legally: On the checks and balances of behavioral regulation

Abstract

As behavioral sciences are unearthing the complex cognitive framework in which people make decisions, policymakers seem increasingly ready to design behaviorally informed regulations to induce behavior change in the interests of the individual and society. After discussing what behavioral sciences have to offer to administrative law, this article explores the extent to which administrative law may accommodate their findings into the regulatory process. After presenting the main regulatory tools capable of operationalizing behavioral insights, it builds a case for integrating them into public policymaking. In particular, it identifies the need to develop a legal framework capable of ensuring that behavioral considerations may inform the regulatory process while at the same time guaranteeing citizens' constitutional rights and freedoms vis-à-vis the regulatory state. © The Author 2014.