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.