The Decision Architecture of Proportionality Analysis: Cognitive Biases and Heuristics

26 Pages Posted: 28 May 2019

See all articles by Anne van Aaken

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Date Written: March 28, 2019

Abstract

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

Suggested Citation

van Aaken, Anne, The Decision Architecture of Proportionality Analysis: Cognitive Biases and Heuristics (March 28, 2019). Available at SSRN: https://ssrn.com/abstract=3364553 or http://dx.doi.org/10.2139/ssrn.3364553

Anne Van Aaken (Contact Author)

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

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