What's Choice Got to Do With It? Addressing the Pitfalls of Using Choice-Architecture Discourse Within Poverty Law

Abstract

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.