The Decision Architecture of Proportionality Analysis: Cognitive Biases and Heuristics
26 Pages Posted: 28 May 2019
Date Written: March 28, 2019
Proportionality analysis (PA) is ever more widely used by national and international courts to balance public goals and/or private rights. Proportionality itself is a frame within which we often think as lawyers. Hitherto, it mostly seen as a rational process of decision-making. But is it? How far does the frame of the PA itself frame the decision-making of (judicial) actors? Do biases and heuristics influence the decision qua the way PA is set up; qua its decision-architecture? The paper aims to shed light on certain features of PA which might, depending how the analysis is conducted, influence the outcome of the decision due to biases and heuristics of the relevant decision-makers. This helps to understand the psychology of different decision architectures in order to better understand outcomes. This is not only relevant for designing law, including constitutions and international law; it also provides a background for the understanding of comparative (constitutional) law.
Keywords: proportionality, cognitve psychology, heuristics and biases
JEL Classification: K10
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