Articles for category: AAA General

Information and Paternalism

Disclosure mandates are often considered to be the least paternalistic of all regulatory techniques. Indeed, information provision is believed to enhance both autonomy and efficiency by facilitating more informed decisionmaking. According to this traditional approach, disclosure regulation – a key instrument in the Nudge toolbox – is beyond reproach. Legitimacy concerns might be raised with respect to other Nudge-type interventions (specifically, the setting of default rules), but not disclosure. I propose a two-pronged challenge to this conventional wisdom.

8. Januar 2015

Constitutional Limits to Paternalistic Nudging in Germany

Nudges with paternalistic aims pose special legal problems in liberal States. Surprisingly, the discussion on regulation-by-nudging has not focused on the constitutional limits to nudging. Although the property rights of firms potentially infringed by nudging measures are dealt with in the literature and by (international) courts (e.g. the tobacco cases), the potential infringement of the rights of those being nudged is neglected. But judges may at one point be confronted with a nudge regulation challenged by the individuals being nudged; and even before reaching a court, the legality of nudging should be scrutinised by legislators. I explore the legal limits of paternalistic nudging under the German Constitution, especially the right to freedom of action and self-determination under Art. 2 (1) German Basic Law.

7. Januar 2015

Educating Citizens: The Choice for Paternalism

Liberal political philosophy has two alternative options in principle: It can either stick to its original theorems such as the harm principle or the separation of law and morals and from here try to prove large parts of present social and political reality as wrong, illegitimate, dangerous etc. The other option is trying to adjust the original theorems to the apparent needs of modern societies, which is what I would prefer in the long run.

7. Januar 2015

Nudging and human dignity

Cass Sunstein’s "Why Nudge?" presents a proposal for nudging as an alternative to traditional regulatory mandates and economic incentive-based regulation. I shall suggest that nudging creates considerable tensions with thick conceptions of human dignity.

6. Januar 2015

Why not Nudge?

Now as ever, I agree with Cass Sunstein’s views on many matters. I above all agree that nudging is compatible with any defensible liberal idea of autonomy, and especially with the undeniable claim that nudges can often enhance autonomy in the empire of caveat emptor. Indeed, my concern is that libertarian paternalism is too libertarian, not too paternalistic.

5. Januar 2015

Constitutional limits to health-related nudging – a matter of balancing

Politically as well as from the point of view of constitutional law, I see neither good reasons to generally reject health-related nudging towards less self-damaging behavior, nor good reasons to issue a general clearance certificate on the grounds that nudging always leaves the addressee “at liberty”. The state is not prohibited from taking sides in matters of public health – neither generally, nor specifically insofar as self-damaging behavior of accountable persons is concerned. However, claiming that people who are just being nudged remain free to resist the nudge falls far short of the constitutional law problems that nudges can raise.

5. Januar 2015

The Ethics of Nudging

The last decade has seen a rapid growth of interest in choice-preserving, low-cost regulatory tools, sometimes termed "nudges." Especially in light of that interest, it is important to obtain an understanding of the nature and weight of the ethical concerns.

5. Januar 2015

The Missing Link: Direct Effect, CETA/TIIP and Investor-State-Dispute Settlement

International treaties have rarely received more attention than the proposed free trade deals with the US and Canada. But in the CETA Draft Agreement, which the Commission regards as a template for free trade negotiations with the United States, we come across a final provision of seemingly minor relevance on ‘private rights’, which rejects the applicability of the agreement en passant. This reaffirms that the implications of the free trade deals would be less dramatic than some suggest.

4. Januar 2015