Did You Say ‘Theories of Choice’? On the Limited and Variable Appetite for Theories in Consumer Law (original) (raw)

ESPOSITO Conceptual Foundations For a European Consumer Law and Behavioural Sciences Scholarship

This chapter introduces the reader to the basic behavioural concepts and their importance for consumer law. The analysis is organized on three levels, the descriptive, the axiological and the prescriptive. The focus is primarily on European research and its connections with EU law. At the descriptive level, the chapter defends the definition of " nudge " as " an effect of the choice architecture that alters people's behaviour by making use of one or more behavioural trait " and offers a taxonomy of nudges. Then, it proposes to label " law and behavioural sciences " the research field devoted to investigating the legal and policy relevance of behavioural insights and emphasises the importance of the concept of behavioural market failure in this regard. At the axiological level, the chapter suggests that, instead of focusing on the opposition between autonomist and welfarist frameworks, it is more interesting to reflect on the importance given to individual preferences and to look at their role in legal practice. At the prescriptive level, the chapter reviews the behavioural toolkit and then offers some insights on how to incorporate behavioural insights in legal discourse. It is argued that the concept of consumer weakness is particularly porous to behavioural insights, and that scientific uncertainty is not a categorical reason against their incorporation. The chapter concludes with some remarks about future research in consumer law and behavioural sciences.

Towards a General Theory of Harm for Consumer Law

Journal of Consumer Policy, 2021

The recent book Consumer Theories of Harm is an important contribution to consumer policy. It is the first attempt to develop theories of harm for consumer law. This essay presents the main arguments of the book (Sections 1 and 2). There are four archetypal scenarios of harm that consumer law should consider: the scam, the lemon, the shock, and the subsidy. Section 3 critically engages with the normative foundations of the analysis. Section 4 proposes to consider the shock scenario, one of the four archetypal scenarios of harm proposed by the book as the benchmark against which assess the other three scenarios. Section 5 shows the importance of searching the theories of harm latent in legislation by showing that ancillary terms in standard terms and conditions are understood by the Unfair Contract Terms Directive as an instance of the scam scenario, not of the shock scenario as proposed by the authors. Finally, Section 6 proposes additional lines of inquiry stimulated by Consumer Theories of Harm.

An Introduction to the Special Issue on “Behavioural Economics, Consumer Policy, and Consumer Law”

Journal of Consumer Policy, 2011

European consumer policy-coupled with the European Economic Constitution and European consumer law-is based on an assumption of rational-acting consumers and suppliers and is deeply rooted in the information paradigm. The information paradigm indicates that asymmetric information can be an impediment to welfare-enhancing consumer decision making. To improve the position of the consumer in markets, regulated information on products and services as well as on rights and remedies are seen as the key devices of consumer policy. The information paradigm suggests that there are consumers who are able, willing, and competent to deal with information provided, to read different languages, to take informed rational decisions and to enforce their information-based rights. Consumers are mostly regarded as individuals. The collective dimension of consumer law and consumer policy is largely set aside. The philosophy behind this is that of Hammurabi, i.e., it suffices to write down the law and to make sure that the consumer knows the law in order to guarantee that one's rights are taken seriously. However, as the recent "Consumer Market Scoreboard" (European Union 2011) has shown, while about three quarters of the respondents believe that consumer organizations are protecting their rights, only 13% of consumers say that they actually make use of their consumer rights on the individual level. Of those, only about half are satisfied with the results of their complaints. As the scoreboard rightly states (ibid), poor complaint handling by companies is both a source of harm to consumers and a missed opportunity to reinforce consumer loyalty. The current information paradigm is a normative paradigm. It builds on a specific assumption of human behaviour and on a legal system which is designed to enforce this

The bright and adventurous future of consumer law research

Research Methods in Consumer Law, 2018

For decades, consumer law has been the stepchild of the legal discipline, neither public nor private law, not classic but post-modern, not 'legal enough', 'too political', in short, a discipline at the margins, suffering from the haut gout and striving to change society through law for the 'better'. Just like Atreyu, Frodo Baggins, Luke Skywalker, the Ghostbusters, Naruto Uzumaki, Dreamworks' dragon trainer, and many others, consumer law is the underdog carrying the burden of saving the day. Times are changing. We are perhaps reaching the point of the story where the world comes to understand the real value of consumer law in a society that is dominated and dependent on private consumption. Publishing houses and ever more numerous researchers from public and private law perspectives, working on national, European and international law are getting into what is no longer a new legal field. Now the time is ripe for a whole Handbook on Consumer Law Research which brings methodology to the fore. This first chapter pursues three aims, firstly to embed consumer law research into the overall development of legal research since the rise of consumer law in the 1960s, secondly to explain our choice to focus on the behavioural turn in consumer law and present the range of contributions in this volume that engage with the upcoming strand of research, thirdly to explore how the recent attention to behavioural insights can be combined with a pre-existing body of doctrinal research and social legal research in consumer law and outline avenues for further research.

Protecting Consumers from Themselves: Consumer Law and the Vulnerable Consumer

2015

Attitudes toward consumer protection are shaped primarily by complex assumptions about human nature and its interaction with modern marketing. The dominant perspective governing American consumer law is individualism, a descriptive and frequently normative assumption that places watchdog responsibilities on the individual consumer. This perspective is described and analyzed through an examination of public policy arguments about (1) advertising that targets children, (2) restrictions on consumption of sugared beverages, and (3) creation of the Consumer Financial Protection Board. Individualism is then contrasted with the portrayal of consumers as vulnerable. Specifically, insights from behavioral economics and neuropsychology are used to gain a more accurate starting point for creating consumer protection laws and regulations that reflect respect for consumers as they are, rather than as who they are in deductive rational actor models of market exchange. TABLE OF CONTENTS

Reconceptualizing behaviorally informed consumer law and policy

Loyola Consumer Law Review, 2022

Behavioral consumer law uses empirical evidence about consumer behavior to inform the design and enforcement of effective laws. This empirically informed law-making sits at the heart of current debates about (i) the use of nudges as a regulatory tool to make consumers better off and (ii) the regulation of design choices on digital platforms that manipulate consumers to purchase goods they do not want. Scholars and policymakers commonly discuss these issues within two paradigms. The first is behavioral law and economics as a frame of analysis. The second is an analysis of consumer biases and their implications for law and policy. This Article advances novel critiques of both paradigms and develops alternatives. First, it demonstrates that behavioral law and economics is not an appropriate approach to legal analysis under conditions of true uncertainty and computational intractability, which are common in the real consumer world. Second, the Article shows how two alternative frameworks – ecological rationality theory and autonomy theory – can function as normative foundations for behavioral consumer law and policy. Adopting either one of the alternative frameworks would lead to significant changes (compared to behavioral law and economics) in terms of what consumer biases are, when they occur, how they are caused, and when they warrant regulation. Third, the Article constructs a new theoretical legal perspective against the preoccupation of behavioral law with human biases by highlighting frictions between the concepts of consumer bias and consumer harm. This perspective is further developed into a frame of analysis for behavioral consumer law that is grounded in the study of consumer heuristics rather than consumer biases. Applying this frame of analysis, fourth, the Article reconceptualizes the meaning of nudging, debiasing and behavioural exploitation (commercial practices that exploit consumer biases).

Consumer Choice: The Practical Reason for Both Antitrust and Consumer Protection Law

1997

This article is about the relationship between antitrust and consumer protection law. Its purpose is to define each area of law, to delineate the boundary between them, to show how they interact with each other, and to show how they ultimately support one another as the two components of a single overarching unity. That overarching unity is consumer choice. Antitrust and consumer protection law share a common purpose in that both are intended to facilitate the exercise of consumer sovereignty or effective consumer choice. Such consumer choice exists when two fundamental conditions are present: (1) there must be a range of consumer options made possible through competition; and (2) consumers must be able to select freely among these options. The boundary between antitrust and consumer protection is best defined by reference to these two elements of consumer choice. The antitrust laws are intended to ensure that the marketplace remains competitive, so that a meaningful range of options is made available to consumers, unimpaired by practices such as price fixing or anticompetitive mergers.' The consumer protection laws are intended to ensure that consumers can select effectively from among those options with their critical faculties unimpaired by such violations as