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Full-Text Articles in Law
Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen
Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen
Journal Articles
Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …
Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag
Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag
Publications
In Nudge, Cass Sunstein and Richard Thaler describe how public and private institutions can improve on individual choices by nudging individuals into making selections that are right for them. Rejecting the Econ-101 caricature of the rational utility maximizer as inaccurate, Sunstein and Thaler apply the insights of behavioral economics to show how institutions can improve the delivery of services. Moving beyond attempts to remedy individual cognitive errors, Sunstein and Thaler also argue for "libertarian paternalism" - which they herald as the "Third Way." This Review assesses their claims critically, finding their development of "nudge" and "choice architecture" to be …