In legal scholarship, as in other fields, it would seem that 'choice-architecture' (where states attempt to 'move' people toward desired behaviour) is everywhere. This paper argues that such blanket adoption of choice-architecture discourse cannot be based on generic terms, nor on imagined or assumed choices. Rather, I contend, the specific characteristics of each legal fieldhere, poverty law -should be considered when debating and reviewing choice-architecture. I point to the dangers of using choice-discourse in the context of poverty law, illuminate significant weaknesses in choice-architecture theory,and thus justify limitations on the use of incentives and nudges in this context. I propel the poverty-as-exception argument, advancing the development of poverty law toward being considered a distinct field of law. The contributions of this paper are thus both theoretical and normative, shifting focus onto those exposed to choicearchitecture, and to the expressive harms caused by assuming choice where there is none.

Public participation, responsive regulation, and other policy formulations are intended to draw governments down from their ivory towers and into engagement with the people. However, they paint at best, a hazy picture of who “the people” are. This superficial representation is felt, among other collectives, by people living in poverty, who not only face hunger, often accompanied by poorer health and lower life expectancy, but whose social exclusion typically goes unrecognized by the authorities. The legal framing of poverty—and, as a result, states' policy approaches to its alleviation—focuses on the material core, representing a very thin conceptualization that fails to address the social dimension. Furthermore, practical avenues for incorporating citizens' views into lawmaking—which might enrich understanding—are lacking when it comes to people in poverty. Combined with a blatantly hegemonic stance, the resulting ignorance around poverty and “the poor” generates welfare laws that are woefully out of touch with reality, and legislative thinking that perpetuates, rather than alleviates, poverty. This paper seeks to make a twofold contribution: (i) to demonstrate this situation with a deep empirical inquiry into the legislative process of one legal provision within the Israeli welfare law regime, juxtaposed against qualitative field‐research findings and (ii) to introduce the inventive and groundbreaking “poverty‐aware” paradigm, constructed in social‐work discourse, to illuminate and explain the empirical findings and point to potential procedural–institutional reform, to pave the way for poverty‐aware legislation.

In most Western jurisdictions, welfare law utilises means testing to determine whether individuals are eligible for welfare allowances, often using property ownership as one of the eligibility criteria. Crucially, the prevailing conception of property ownership is premised on the notion that property rights are applied equally to all owners in matters relating to the control and management of that property. When this assumption proves not to reflect reality, it can have devastating consequences for those most in need of the support ostensibly provided by welfare law. The present qualitative empirical study examines two cases in which such adverse consequences are felt: in the two largest minority communities in Israel—the Palestinians and the Ultraorthodox Jews (Charedi). The findings show that property ownership in these communities is realised hierarchically, along patriarchal lines, and that family members occupy and manage property in accordance with community customs and traditional norms, often far removed from state laws. Beyond theoretical debates or ethnographic observations, the discrepancies between the state’s ideas of ownership and those recognised by members of the Palestinian and Charedi communities in Israel often result in the denial of financial aid to those who need it most. This article will identify such differences in conception and will describe how they provide an additional explanation for the high levels of poverty in minority communities. Finally, it will examine two private law doctrines that can be used as inspiration to better interpret welfare law and make it more nuanced and culturally sensitive, especially when it encounters people in poverty and marginalised groups.

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How do judges formulate their written decisions when rejecting plaintiffs’ requests in a welfare context? In this paper, based on our thematic analysis, we show how judges construct a nuanced concept of ‘welfare deservingness’ to narratively mitigate their own moral and emotional tensions when making decisions on remedies in public-housing cases. Deploying a notion borrowed from criminology—‘neutralisation techniques’—we discuss the material and symbolic implications of this concept, contributing to the theoretical discussion of both poverty law and legal professionalism. We claim that judges use ‘neutralisation techniques’ to negotiate, justify, and explain their decisions while attempting to avoid or lessen the dilemmas they typically face, given the scarcity of housing resources and their inability to grant material assistance. Employing these techniques, the judges create ‘deservingness spectrum’ that enables them to essentially subvert the binary division of accepted/denied cases. At one end of this spectrum, the denial of the plaintiff's ‘victim’ status is enacted through the negation of symbolic deservingness and, thus, the denial of housing is framed as a warranted sanction on the plaintiff's reproachable character. At the other end, the techniques allow the judges to recognise ‘symbolic deservingness’ while still not providing material aid. Judges are therefore able to preserve their professional status and sense of moral rectitude when making such unenviable housing decisions. More broadly, our analysis offers a novel lens through which to critically understand judicial decision-making in welfare jurisprudence.