Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment

Aaken, Anne van

doi:10.5771/9783845263939-161

Cited by 3 publications

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“…On the other hand, the examination of whether the applied tool will meet the proportionality criterion in the strictest sense comes down to a balance between the assessed values. When applying these criteria, it is necessary to examine the relationship between the usefulness of the applied legal measure for the general good of a given Member State and the limitations experienced by treaty freedoms [39,40]. The application and evaluation of tools, such as nudges and boosts, must be viewed through the prism of Article 52, Section 1 of the EU Charter of Fundamental Rights, which enables the assessment of their admissibility from a legal perspective.…”

Section: The Proportionality Principlementioning

confidence: 99%

Tools for public health policy: nudges and boosts as active support of the law in special situations such as the COVID-19 pandemic

et al. 2021

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In recent years, “nudging” has become a standard behavioral intervention at the individual level and for the design of social policies. Although nudges are effective, such interventions seem to be limited to a given space and time, and there is only scant evidence to support the contrary view. On the other hand, choice architects may utilize another type of intervention called “boosting,” which shows the promise of generalized and lasting behavioral change. A government can use these tools to shape public policy. Behavioral interventions such as policy-making tools have their boundaries, as does the law. We argue that nudging and boosting may serve as active local or global aids in support of the legal system under certain circumstances. Nudging and boosting can also support the legal system, especially in relation to emerging social issues or events that are unprecedented, such as the recent global COVID-19 pandemic, where certain behavioral patterns are expected, but it would be difficult or impossible to enforce them through the law alone.

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Section: The Proportionality Principlementioning

confidence: 99%

Tools for public health policy: nudges and boosts as active support of the law in special situations such as the COVID-19 pandemic

et al. 2021

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“…The second approach accepts the soundness of Crawford's point that crippling compensation should not be addressed at the level of general secondary rules, and explores seriously the tools for settling the matter on a case-by-case basis. 232 In normative terms, corrective justice is insufficient but no general alternative is proposed, deferring instead to the choice of specialist fields to strike their own balance between corrective justice, deterrence, loss allocation, and other purposes 233 in light of peculiarities of their subject-matter and institutional structure. 234 At the level of primary rules, examples could range from tweaks of particular rules, like relaxation of promptness or valuation standards for lawful expropriation by reference to the effects on the State, 235 to recalibrating scope and content of fields of law so as to prevent the characterisation as wrongful of conduct likely to give rise to crippling compensation.…”

Section: Three Futures For Crippling Compensationmentioning

confidence: 99%

A Case Against Crippling Compensation in International Law of State Responsibility

Paparinskis¹

2020

The Modern Law Review

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The obligation of States to provide full reparation for internationally wrongful acts, including by full compensation, is one of the bedrock principles of international law. The article challenges this principle for cases where compensation is crippling for the responsible State or its peoples, which can occur when State responsibility is implemented before international courts and tribunals. The International Law Commission's decision not to qualify full reparation for instances of crippling compensation in its influential Articles on State responsibility was an unpersuasive legal position to adopt in 2001, and its rationale has aged badly. However, the failure by States and other actors to challenge it in the following two decades signified its endorsement by the international legal process. Nevertheless, the case against the permissibility of crippling compensation in modern international law can still be made, both on a case-by-case basis and at the level of customary secondary rules of State responsibility.

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Constitutional Limits to Paternalistic Nudging: A Proportionality Assessment

Cited by 3 publications

References 0 publications

Tools for public health policy: nudges and boosts as active support of the law in special situations such as the COVID-19 pandemic

Tools for public health policy: nudges and boosts as active support of the law in special situations such as the COVID-19 pandemic

A Case Against Crippling Compensation in International Law of State Responsibility

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