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Recht im Kontext 6
Kemmerer/Möllers/Steinbeis/Wagner (eds.)
Choice Architecture
in Democracies
Exploring the Legitimacy of Nudging
Nomos
BUT_Kemmerer_2288-4_HC.indd 1 23.11.16 09:35
Recht im Kontext
edited by
Prof. em. Dr. Dr. h.c. mult. Dieter Grimm
Alexandra Kemmerer
Prof. Dr. Christoph Möllers
Volume 6
Choice Architecture
in Democracies
Nomos
1. Edition 2016
© Nomos Verlagsgesellschaft, Baden-Baden, Germany 2016. Printed and bound in Germany.
This work is subject to copyright. All rights reserved. No part of this publication may be
reproduced or transmitted in any form or by any means, electronic or mechanical,
including photocopying, re-cording, or any information storage or retrieval system,
without prior permission in writing from the publishers. Under § 54 of the German
Copyright Law where copies are made for other than private use a fee is payable to
“Verwertungsgesellschaft Wort”, Munich.
No responsibility for loss caused to any individual or organization acting on or refrain-
ing from action as a result of the material in this publication can be accepted by Nomos
or the editor.
Dieter Grimm
Alexandra Kemmerer
Christoph Möllers
5
Preface
7
Preface
Berlin Seminar Recht im Kontext and at the Max Planck Institute for Hu-
man Development. The blog posts republished in the second part of the
book were first published as an Online Symposium on Verfassungsblog in
April 2015, furthering the discussion we had during three vibrant confer-
ence days in Berlin.
At the conference, scholars and practitioners from Europe and the US
came together in a uniquely interdisciplinary and transnational constella-
tion. It had been our aim to prompt a transnational debate on the constitu-
tional legitimacy of choice architecture and »nudging« at the intersection
of German and European legal academia, politics, media and wider public
spheres and to connect it with discourse in other parts of the world - most
prominently, but not exclusively, in the US. »Nudging«, the new
buzzword in regulation coined jointly by Richard Thaler and Cass Sun-
stein, has been further promoted and popularized by Cass Sunstein alone,
for example in »Why Nudge? The Politics of Libertarian Paternalism«
(2014), and now also in »The World According to Star Wars« (2016).
»Regulation-by-nudging has become fashionable«, »Nudging is hip« (as
Anne van Aaken and Hans Michael Heinig put it bluntly), Angela Merkel
has set up her own behavioral insights team - and even if we consider that
to external observers »the German use of nudging seems more about the
internal reform of the German civil service administration than any grand-
er scheme of reforming regulation root and branch« (Christopher
McCrudden / Jeff King), then it is nonetheless as timely as it is relevant to
explore the legality and legitimacy of choice architecture and nudges in
the context of German regulative and constitutional traditions. From Bis-
marck to »Neue Verwaltungsrechtswissenschaft« – paternalistic interven-
tions and »steering approaches« to administrative law have been with us
for a long time. Does Sunstein’s »nudge« really pose new challenges? Or
have we been there before? Is a »functional perspective on the law«, »a
focus on the empirical, behavioral dimension of the law« (Emanuel Tow-
figh / Christian Traxler) indeed becoming more prominent in Germany
(and other European states)? And, if so, are such developments linked to
new international and interdisciplinary perspectives in German legal
scholarship?
8
Preface
The two parts of this book, the collection of essays and the shorter contri-
butions of our blog symposium, offer a rich arsenal of ideas and argu-
ments for a discourse still in statu nascendi while regulatory activism
seems already in full swing.
Cass Sunstein opens our book with reflections on the »Ethics of Choice
Architecture«. He argues that it is pointless to object to nudges and choice
architecture as such, and that human beings cannot live in a world without
them. But is nudging unethical? Is it coercive or manipulative, or an of-
fense to autonomy and dignity? Sunstein explores principal ethical objec-
tions to choice architecture and nudging, with particular reference to their
use by government. He admits that some nudges can be counted as forms
of manipulation, raising objections from the standpoint of both autonomy
and dignity. Further changes in choice architecture and new nudges are
indispensable to reach the »highest ideals« of freedom-respecting nations.
But, he stresses, many nudges are not only permissible on ethical grounds
– they are even required in order to increase social welfare, strengthen au-
tonomy and dignity and foster self-government.
In a forceful and nuanced critique, Christopher McCrudden and Jeff
King rework Sunstein’s concept of »Libertarian Paternalism« and argue
that it is seriously flawed. They emphasize that Libertarian Paternalism
and its attendant regulatory implications are too libertarian, not too pater-
nalistic – and as a result are in considerable tension with »thick« concep-
tions of human dignity.
Uwe Volkmann discusses the concept of nudging in the context of tradi-
tional »Old European« philosophical frameworks and features of paternal-
ism and »state education«– and their liberal counter-arguments.
Volkmann argues that liberal culture and careful proportionality checks
can prevent us from entering a slippery slope towards a totalitarian control
over our private lives. For him, there is not much to learn for »Old Eu-
rope« from US-American regulatory discourse. Au contraire: a concept
such as nudging could turn into a means of downsizing effective regula-
tion.
Anne van Aaken explores the legal limits of paternalistic nudging under
the German Constitution, in particular the right to freedom of action and
self-determination under Article 2 (1) German Basic Law, by judging dif-
ferent types of nudges according to the proportionality principle. Van
Aaken demonstrates that addressing nudging through the lens of propor-
9
Preface
10
Preface
11
Preface
policy making for one group is the nemesis of a manipulative nanny state
for others. Towfigh and Traxler argue that the passionate controversy as
well as »continental Europe’s nudging skepticism« is triggered by the pe-
culiarities of societal dispositions and of the role, habitus, and education of
lawyers within different societies – and by the law’s and the lawyers’ re-
spective embeddedness in politics. Due to their traditional doctrinal and
monodisciplinary education, Towfigh and Traxler find German lawyers ill
equipped to discuss questions of behavioral intervention. Nonetheless,
they see a bright future for an empirically grounded behavioral perspective
in German law and legal scholarship, with legal scholarship and education
currently undergoing substantial changes and integrating international and
interdisciplinary perspectives.
Sabine Junginger offers »A Design Perspective on Nudging«, remind-
ing us of the fact that lawyers and policymakers are engaged in shaping
the everyday life of citizens. Junginger encourages »non-intrusive inter-
vention«, i.e. design activities that support people in their own informed
decision-making and in taking their own deliberate actions - human-
centered design that is developed in close cooperation of regulators and
citizens, in a joint learning process.
Gunnar Folke Schuppert rejects Towfigh’s and Traxler’s characteriza-
tion of the traditional German legal scholar as a strong believer in the
state, lacking interdisciplinary perspectives and sophisticated methodolog-
ical toolboxes. He writes as a legal scholar versed in social science and in-
vokes the term (and approach) »Neue Verwaltungswissenschaft« (»New
Administrative Science«), as reference to a reform initiative already inau-
gurated in the 1990s and led by Wolfgang Hoffmann-Riem, Eberhard
Schmidt-Aßmann and by Andreas Voßkuhle, the current President of the
Federal Constitutional Court. Schuppert emphasizes the need for a double
contextualisation of the concept of nudging, both in the context of the the-
ory of regulation and in communication theory.
Georgios Dimitropoulos also links behaviorally informed regulation to
the »Neue Verwaltungsrechtswissenschaft« school. In his view, the unique
potential of nudging to combine libertarianism and paternalism reveals the
potential for the dynamic interaction of social and institutional learning,
and shows how learning can improve regulatory designs, thereby achiev-
ing legitimacy.
In a short comment, )iels Petersen explains why lawyers should deal
with nudges. Lawyers have a comparative advantage, he argues: they are
12
Preface
We sincerely thank the contributors to this volume for their erudite, criti-
cal and creative scholarly efforts, as well as the many other speakers and
participants who offered important insights on the conference theme. Our
particular thanks go to Sabrina Artinger, Christoph Engel, Martin Eifert,
Kristina Erta, Benedikt Herrmann, Lars Klöhn and Alexander Winterstein
who participated in the conference panels but were unable to contribute to
this resulting volume. And we are very grateful to the external panel
chairs, Isabel Feichtner and Ann-Katrin Kaufhold, and to Dieter Grimm.
The coupling of »real« and »virtual« debate realised with this venture
was novel in German-speaking legal academia. By tying it in with the pro-
ject »Verfassungsblog: Perspektiven der Wissenschaftskommunikation in
der Rechtswissenschaft« (»Verfassungsblog: Prospects of Scientific
Communication in Legal Scholarship«) at Humboldt-Universität zu Ber-
lin, range, resonance and diversity of the conference could be greatly mul-
tiplied.
A transnational debate where people from different disciplines, profes-
sions and walks of life are meant not to talk past one another, but engage
in a common reflection, requires some effort. Such a project would not
have been possible without the financial and organisational support of a
number of institutions and the tremendous dedication of many people.
13
Preface
14
Table of Contents
Preface 7
Table of Contents 15
Cass R. Sunstein
The Ethics of Choice Architecture 21
Uwe Volkmann
Nudging, Education, Paternalism:
A Philosophical Perspective from the Old Europe 141
Robert )eumann
The Devil is in the Details –
Four Remarks on the Legitimacy of Choice Architecture 197
15
Table of Contents
Gebhard Kirchgässner
Justification and Possibilities of Soft Paternalism 229
Sabino Cassese
Exploring the Legitimacy of Nudging 241
Gertrude Lübbe-Wolff
Constitutional Limits to Health-Related Nudging –
a Matter of Balancing 247
Johanna Wolff
‘Partner Months’ and the Fundamental Rights of Parents –
Considerations on the Legitimacy of Nudges and ‘Nudgy Legislation’ 255
Oren Bar-Gill
Information and Paternalism 267
Alberto Alemanno
Nudge and the European Union 271
Morag Goodwin
Architecture, Choice Architecture and Dignity 285
16
Table of Contents
Sabine Junginger
A Design Perspective on Nudging 329
Georgios Dimitropoulos
From Choosing to Learning:
Path Dependencies of Nudging, and How to Overcome Them 339
)iels Petersen
Why Lawyers Should Deal with Nudges 343
Christopher Unseld
Take Off Your 3D Glasses –
How Nudging Provokes the Way We Imagine Law 345
Leonie Vierck
Nudging as a Common Practice in International Aid 353
Bibliography 357
Contributors 379
Index 383
17
Part I
Abstract
____________________
* This essay was the basis for remarks on the ethics of choice architecture and
nudging, delivered at a conference on that topic at Humboldt University in Berlin
in January 2015. I am most grateful to participants in the conference for many
valuable thoughts and suggestions. I am also most grateful to Matthew Lipka,
Martha Nussbaum, Lucia Reisch, and Adrian Vermeule for superb comments on
a previous draft. This essay borrows heavily from, but also substantially revises,
The Ethics of Nudging, an essay originally published in the Yale Journal on Reg-
ulation (2015).
21
Cass R. Sunstein
because some nudges enable people to devote their limited time and atten-
tion to their most important concerns.
(5) Choice architecture should not, and need not, compromise either digni-
ty or self-government, but it is important to see that imaginable forms
could do both. It follows that when they come from government, choice
architecture and nudges should not be immune from a burden of justifica-
tion, which they might not be able to overcome.
(6) Some nudges are objectionable because the choice architect has illicit
ends. When the ends are legitimate, and when nudges are fully transparent
and subject to public scrutiny, a convincing ethical objection is less likely
to be available.
(7) There is ample room for ethical objections in the case of well-
motivated but manipulative interventions, certainly if people have not
consented to them; such nudges can undermine autonomy and dignity. It
follows that both the concept and the practice of manipulation deserve
careful attention. The concept of manipulation has a core and a periphery;
some interventions fit within the core, others within the periphery, and
others outside of both.
____________________
1 Some of strongest objections can be found in R Rebonato, Taking Liberties (New
York, Palgrave, 2012) 201.
2 Catalogues can be found in OECD, ‘Regulatory Policy and Behavioral Econom-
ics’ (2014); CR Sunstein, ‘A Council of Psychological Advisers?’ (2015) Annual
Review of Psychology (forthcoming).
22
The Ethics of Choice Architecture
jections can have either political or legal resonance. For example, nudges
that involve information disclosure, or compulsory warnings, might raise
first amendment issues.
3. My central argument is that at least if they are taken in general or in the
abstract, the ethical objections lack much force, and for two different rea-
sons. First, both nudges and choice architecture are inevitable, and it is
therefore pointless to wish them away. Second, many nudges, and many
forms of choice architecture, are defensible and even required on ethical
grounds, whether we care about welfare, autonomy, dignity, self-
government, fair distribution, or some other value.
4. It is true that all government action, including nudges, should face a
burden of justification (and sometimes a heavy burden). If the government
requires disclosure of information, or establishes particular default rules, it
must explain and defend itself. The fact that people retain freedom of
choice, and are ultimately permitted to go their own way, does not give
public officials a kind of license to do whatever they want.3 But in many
cases, the requisite explanation is available.
5. Suppose, for example, that we are welfarists and hence believe that the
goal of social ordering (including those forms for which government is re-
sponsible) is to promote social welfare. If so, we will favor welfare-
promoting nudges. Or suppose that we believe in individual autonomy and
dignity. If so, we will favor nudges and choice architecture that promote
those values. (It is possible, of course, that distrust of government, and
faith in markets, will incline us to minimize nudging on welfarist or au-
tonomy grounds.4)
6. If we value democratic self-government, we will be inclined to support
nudges and choice architecture that can claim a democratic pedigree and
that promote democratic goals. Any democracy has a form of choice ar-
chitecture that helps define and constitute its own aspirations to self-
government. A Constitution can be seen as a kind of choice architecture
for choice architects. A self-governing society might well nudge its citi-
zens to participate in the political process and to vote. (Certain political
____________________
3 Note as well that a disclosure requirement is a mandate, and no mere nudge, for
the people on whom the requirement is imposed. It might be a nudge for consum-
ers but a requirement for producers. I will say more about this point below.
4 EL Glaeser, ‘Paternalism and Psychology’ (2006) 73 U. Chi. L. Rev. 133.
23
Cass R. Sunstein
24
The Ethics of Choice Architecture
ready nudges (sometimes selfishly) – but this defense is not necessary, be-
cause government is nudging even if it does not want to do so.
(b) In this context, ethical abstractions (about, for example, autonomy,
dignity, and manipulation7) can create serious confusion. We need to bring
those abstractions into contact with concrete practices. Nudging takes
many diverse forms, and the force of an ethical objection depends on the
specific form.8
(c) If welfare is our guide, much nudging is actually required on ethical
grounds, even if it comes from the government. A failure to nudge, and
not merely the right kind of nudge, might be ethically problematic, at least
if we do not insist on controversial (and possibly incoherent) distinctions
between acts and omissions.9
(d) If autonomy is our guide, much nudging is also required on ethical
grounds. Some nudges actually promote autonomy, by ensuring that
choices are informed and that choices will actually be made. Some nudges
promote autonomy by freeing people to focus on their real concerns; there
is a close relationship between autonomy and time management. A failure
to nudge might seriously compromise autonomy.
(e) Choice architecture should not, and need not, compromise either digni-
ty or self-government, though imaginable forms could do both. The value
of dignity (explicitly recognized in the German Constitution10 and playing
a significant role in American constitutional law as well) imposes a barrier
to some forms of choice architecture and some nudges. Self-government
calls for certain nudges, and legitimates others, and forbids still others.
____________________
7 A valuable discussion is TM Wilkinson, ‘Nudging and Manipulation’ (2013) 61
Political Studies 341. See also S Conly Against Autonomy (Cambridge: Cam-
bridge University Press, 2012) 30: »Libertarian Paternalism is manipulative. That
is, it does not suggest that we engage in free and open discussion in order to ra-
tionally persuade you to change your ways. . . . The point of the nudge is to push
you in ways that bypass your reasoning. That is, they use your cognitive biases,
like your tendency to go with the default option, to bring about good effects.
There is a sense in which they fail to respect people’s decision-making ability.«
The concern must be engaged in the context of (some) nudging.
8 Id.
9 On acts, omissions, and government, see A Vermeule and CR Sunstein, ‘Is Capi-
tal Punishment Morally Required?’ (2005) 58 Stan. L. Rev. 703.
10 Article 1, paragraph 1 of the German Constitution states: »Human dignity shall
be inviolable. To respect and protect it shall be the duty of all state authority.«
25
Cass R. Sunstein
(f) Many nudges are objectionable because the choice architect has illicit
ends. If the ends are legitimate, and if nudges are fully transparent and
subject to public scrutiny, a convincing ethical objection is less likely.
(g) There is nonetheless room for such an objection in the case of manipu-
lative interventions, certainly if people have not consented to them. The
concept of manipulation deserves careful attention, especially because
manipulation takes many forms, and can compromise both autonomy and
dignity. Some forms of manipulation are built into the fabric of everyday
life, including relationships between friends and even spouses. Advertise-
ments and storefronts manipulate. Nonetheless, manipulation can run into
serious objections, perhaps especially when it comes from governments.
A. In General
11. Nudges are interventions that steer people in particular directions but
that also allow them to go their own way.11 A reminder is a nudge; so is a
warning. A GPS nudges; a default rule nudges. To qualify as a nudge, an
intervention must not impose significant material incentives.12 A subsidy
is not a nudge; a tax is not a nudge; a fine or a jail sentence is not a nudge.
To count as such, a nudge must fully preserve freedom of choice. If an in-
tervention imposes significant material costs on choosers, it might of
course be justified, but it is not a nudge.13 Some nudges work because they
inform people; other nudges work because they make certain choice easi-
er; still other nudges work because of the power of inertia and procrastina-
tion.
12. When people make decisions, they do so against a background consist-
ing of choice architecture.14 A cafeteria has a design, and the design will
affect what people choose. The same is true of websites. Department
____________________
11 See R Thaler and CR Sunstein, )udge (New Haven, CT, Yale University Press,
2008).
12 On some of the complexities here, see CR Sunstein, Why )udge? (New Ha-
ven/London, Yale University Press, 2014).
13 See id.
14 See id.
26
The Ethics of Choice Architecture
____________________
15 See B Wansink, Slim By Design (New York, HarperCollins, 2014).
16 E Dayan and M Bar-Hillel, ‘Nudge to Nobesity II: Menu Positions Influence
Food Orders’ (2011) 6 Judgment and Decision Making 333.
17 See R Korobkin, ‘The Endowment Effect and Legal Analysis’ (2003) 97 )w L
Rev 1227.
18 An alternative, of course, is to call for active choosing, but sometimes that is not
feasible. See CR Sunstein, Choosing )ot To Choose (Oxford: Oxford University
Press, 2015).
19 See B Keys et al., ‘Failure to Refinance’ (2014) )BER Working Paper No.
20401.
27
Cass R. Sunstein
____________________
20 See FA Hayek, ‘Freedom, Reason, and Tradition’ (1958) 68 Ethics, 229; FA
Hayek, The Market and Other Orders (Chicago, University of Chicago Press,
2014).
21 See id.; E Ostrom, Governing the Commons (Cambridge: Cambridge University
Press, 1990).
22 See E Ullmann-Margalit, The Emergence of )orms (Oxford, Oxford University
Press, 1976).
23 E Ullmann-Margalit, ‘The Invisible Hand and the Cunning of Reason’ (1997) 64
Social Research 181.
24 See S Mullainathan and E Shafir, Scarcity (New York, Times Books, 2013).
25 CR Sunstein and L Reisch, ‘Automatically Green’ (2014) 38 Harv Env L Rev
128.
26 Id.
27 R Bubb and R Pildes, ‘Why Behavioral Economics Trims its Sails’ (2014) 127
Harv. L. Rev. 1593.
28 See Wansink, Slim By Design (2014).
29 See A Lavecchia et al., ‘Behavioral Economics of Education’ (2014) )BER
Working Paper No. 20609.
30 For an interesting empirical result, see J Kessler and A Roth, ‘Don't Take 'No'
For An Answer: An Experiment With Actual Organ Donor Registrations’ (2014)
)BER Working Paper No. 20378 (finding that required active choosing has a
28
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