For decades, consumer law has been the stepchild of the legal discipline, neither public nor private law, not classic but postmodern, not ‘legal enough’, ‘too political’, in short, a discipline at the margins, suffering from the haut goût 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 at which the world comes to understand the real value of consumer law in a society that is dominated by 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: first, 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 research and present the range of contributions in this volume that engage with the upcoming strand of research; and 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.
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Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito
Vanessa Mak, Eric Tjong Tjin Tai and Anna Berlee
At the outset of this book the question was put forth: do data-driven technologies require regulation, and vice versa, how does data science advance legal scholarship? While there is no resounding answer one way or the other to the first question, we can deduce from the analyses put forward by our authors that the rise of the so-called data economy does pose challenges to regulators. The challenges are diverse and the answers to the – many – questions put forward in the previous chapters will likely be manifold. We nevertheless perceive some common issues that regulators are likely to encounter in each of the areas of law that were examined. We summarize them in section 2 of this conclusion, and elaborate some thoughts on the direction in which future research on the regulatory aspects of data-driven technologies may be headed. The second part of the book considered the increasing use of data science in legal scholarship and legal practice. Here also, challenging questions for future research have been identified by our authors. While the replacement of lawyers and judges by robots may still be a science-fiction dream (or nightmare), the use of data analysis in law is changing the way in which we approach legal (research) questions. We summarize the tentative findings in this field in section 3 of this conclusion. We round off the book with a final question: with data science and law, are we witnessing the emergence of a new discipline?
Vanessa Mak, Eric Tjong Tjin Tai and Anna Berlee
This book deals with one of the most important scientific developments of recent years, namely the exponential growth of data science. More than a savvy term that rings of robotics, artificial intelligence and other terms that for long were regarded as part of science-fiction, data science has started to become structurally embedded in scientific research. Data, meaning personal data as well as information in the form of digital files, has become available at such a large scale that it can lead to an expansion of knowledge through smart combinations and use of data facilitated by new technologies. This book examines the legal implications of this development. Do data-driven technologies require regulation, and vice versa, how does data science advance legal scholarship? Defining the relatively new field of data science requires a working definition of the term. By data science we mean the use of data (including data processing) for scientific research. The availability of massive amounts of data as well the relatively cheap availability of storage and processing power has provided scientists with new tools that allow research projects that until recently were extremely cumbersome if not downright impossible. These factors are also often described with the term ‘big data’, which is characterized by three Vs: volume, velocity and variety.The term data science is nonetheless broader, because it can also refer to the use of data sets that are large but still limited—and therefore, unlike big data, of a manageable size for processing.
This chapter sketches the contours of a methodological attitude aimed to explore the spatiality and materiality of law by taking abstraction seriously and using abstraction strategically. This is done through five steps. First, I briefly account for the impact that the spatial and subsequent (affective, material, post-human) turns in social sciences and humanities had on the notion of the social. Second, I draw the relative consequences vis-à-vis the law, by introducing the notion of spatiolegal. Third, I describe the way in which within the legal system, as well as legal thinking more generally, space has been systematically misunderstood. I especially focus on the case of socio-legal and critical legal approaches, highlighting how beneath their misunderstandings they betray a common incapacity to overcome the separation between law and space, thus reaffirming under another guise the opposition between the abstract and the concrete. Fourth, I tackle this question by integrating insights on the ‘real’, ‘concrete’ and ‘productive’ quality of abstractions, coming from Karl Marx, Peter Goodrich, Gilles Deleuze and Felix Guattari. Along these four sections, the strategic significance of re-evaluating the notion of abstraction becomes gradually apparent, both in the political and methodological sense. Therefore, fifth, I conclude by distilling the discussion hitherto developed, and operationalise it through an empirical example. In this way I am able to show the methodological approach developed in this chapter at work, as well as to provide a minimal testing ground for assessing its usefulness.
In recent years, actor-network theory (ANT), and the work of Bruno Latour in particular, have gained significant interest amongst legal scholars. This approach, derived from Science and Technology Studies (STS) and bearing various links with anthropology and ethnographic methods, has enabled new insights to emerge in relation to the ways in which law operates in everyday practices. The innovative position the approach suggests has been largely based on the breaking down of the dichotomy between nature and society, humans and non-humans, and in turn on an emphasis on the importance of materiality in social practices (and its complexity). In his early work, Bruno Latour therefore laid out the foundations of what was to become a radical rethink of sociological assumptions, by challenging the extent to which humanity can ever be imagined as being fundamentally separate from nature. Consequently, he argued that some of the most fundamental assumptions of modernity, about how knowledge is made, societies are built, and humans can relate to their environment, are mistaken and in need of revisiting. Given its deep engagement with our relationship with nature, and its grounding in the sociology of science, it is somehow surprising that ANT has not been more frequently explored in environmental law – in spite of a few examples. However, more resources are available to those wanting to imagine what an ‘ANT approach to environmental law’ may look like, if engaging with STS and the anthropology of science literature that has in recent years aimed to unpack some of the legal stories that surround environmental practices. In this chapter, I seek to bring together some of this scholarship to reflect on what ANT can bring to environmental law research. The chapter is illustrated specifically with the example of the use of natural resources for industrial purposes, and the long-standing debates on ‘biopiracy’ that have animated much legal debate since the 1990s. Through this example, I retrace the difficulty for modern environmental law to engage with practices that challenge the boundaries between nature and humanity, and the dichotomies on which law has so far operated. I explore how studies that have embraced some of the more radical claims of ANT and STS, and engaged ethnographic analyses of social practices, have illustrated how law often fails to seize the messiness of the entanglement of nature and society. I conclude by discussing how ANT, and the work of Bruno Latour, can be used more broadly by environmental lawyers seeking to reimagine the ways in which law relates to nature.
The text sketches out a methodology of ‘flat ecology’ for rethinking and reworking the present apparatuses of power – political, economic and legal – that engage in performing backgrounding of other-than-human bodies. By diffracting the concepts of assemblage and apparatus through epistemologies of feminist science scholars Karen Barad and Donna Haraway and ontologies of Deleuze and Guattari, and Object-Oriented philosophers, I formulate the concept of ‘minoritarian apparatus’ as a theoretico-practical tool towards seeking posthuman environmental justice. The second part of the text traces the methodology and proceedings of my collaborative performance all that is air melts into city (2014). The site-specific intermedia project creatively re(con)figured the apparatus of European Union Emissions Trading Scheme as a ‘minoritarian apparatus’, a posthuman ecology of difference that affords more just possibilities for meaning-mattering of extra-human bodies.
Jane Holder and Donald McGillivray
As a response to the increasing combining of environmental activism and environmental scholarship, in this chapter we discuss what an environmental justice perspective brings to research in environmental law and we argue for environmental justice to act as a central and motivating purpose in this field of research. In terms of the development of critical research methods to support this we draw upon classic studies of environmental justice, as well as our own experience of using case studies to research environmental assessment and the protection of open green spaces. We suggest that collective case studies (also known as multisite or multiple case studies) offer an opportunity to map out and build up a picture of common concerns and losses and similar experiences of legal hurdles and challenges on the part of geographically disparate local communities. This type of case study is capable of revealing broad discriminatory and unfair practices in environmental decision making which may form part of a pattern of lack of influence and participation in decision making extending beyond the specifics of a particular site, environmental conflict or legal dispute. We outline several critical research stances which might usefully be engaged in this process of centring environmental justice by providing a framework for analysing sets of case studies: taking ‘everyday’ evidence seriously (in recognition of the procedural and distributional justice implications of the generation and application of evidence of risks and harms); identifying local/global interactions (recognising the frequently unjust dynamics which arise from the organisation of space – spatial justice implications); and the significance of spatial relationships, especially according to feminist approaches (relational justice). More practically we outline the nature of collaboration and partnership arrangements between academics and environmental campaign groups which are stimulating and supporting the development of communities of practice aimed at the sharing and application of legal and campaigning knowledge.
In an attempt to bring critical environmental law to a discussion with the current planetary challenges such as the Anthropocene and climate change, and understand the methodological challenges that ensues from such a discussion, I suggest three basic tenets from which environmental law can be examined: grammar, perspective and methodology. Grammar refers to the need for new concepts and ways of connecting the various bodies that participate in and consist of the environment. To this effect, I suggest some terms, such as continuum/rupture, human/nonhuman/inhuman, as well as geologic immersion and planetary withdrawal. Perspective refers to the way current thinking changes or at least is affected by the Anthropocene. Finally, methodology refers to the way critical environmental law must find ways to seek knowledge and the epistemological presuppositions of the limits of such knowledge. In conclusion, I offer four methodological demands of critical environmental law in order for the latter to adapt methodologically and integrate the Anthropocenic grammar and perspective.
Some might wonder why it is necessary to include an ecofeminist approach in a volume on environmental law research methodology. There are a number of reasons why such an approach can add value to our consideration of environmental research: not least, it offers an important counter hegemonic critique of societal engagement with the environment and one that complements other important differential perspectives, such as those of indigenous peoples, and can therefore enrich our understanding of important environmental issues. Just as compellingly, ecofeminist approaches to engaging with environmental questions offer a powerful potential corrective to current dominant, gendered, methodologies which have proved to be of limited effectiveness in addressing environmental degradation. Ecofeminism, with its methodologically distinctive drive to achieve a working fusion of theory and activism, and its commitment to encapsulating the relevance of lived experience in addressing societal challenges, potentially has a great deal to offer in the endeavour to harness the artificially yet routinely sundered conceptual and practical approaches to environmental issues that is arguably a factor retarding progress in addressing complex, large-scale, socially embedded environmental issues. The impetus towards the synthesis of systemic thought and lived experience also recognises the necessity of fostering broader participation in the crafting of environmental policy and law responses to the major environmental problems of our time. To this end ecofeminist methodology employs innovative approaches towards garnering a wide range of gender perspectives that address the neglected complexities of women’s vulnerability and agency as environmental actors. This chapter looks specifically at climate change and the eventual emergence of gender in the United Nations Framework Convention on Climate Change (UNFCCC) regime, through making a case and ultimately obtaining recognition for the gender constituency in this, the chief institution of global climate governance. This ongoing process has seen women employ feminist approaches, such as transversal politics (with which this chapter is chiefly concerned), as vehicles facilitating the construction of knowledge and coalition-building to good effect in adding weight to their case for inclusion and ultimately influence in this most crucial, contentious, contested environmental law and policy context and arguably offering richer treatment of the substantive issues than hitherto.
There is a growing awareness of the need to reconsider the traditional range of investigative approaches used by both lawyers and geographers as we grapple with improving the management of human impacts on the environment. In this chapter I describe a model for legal research that embraces method and methodology from the social sciences that has the potential to expand the scope and impact of research in environmental law. The argument stems from my scholarship, situated at the intersection of law and geography, which explores the connectedness between people, place and law. In such research there are ever-present core questions about the effectiveness or efficacy of environmental legal regimes. My concern is to understand whether environmental laws actually achieve what they set out to do, and this is underpinned by my working hypothesis that a better understanding of place should both inform and improve how environmental law operates. Accordingly, the methods employed in my research range from an analysis of codified law through to primary data collection, based on qualitative research methods. In my work considerable weight is placed upon the identification and critical assessment of the laws, formal and informal, that restrict the way in which local populations interact with their lived-in landscapes. This takes the form of a legal discourse analysis on the regulatory situation governing a particular place, and, as with much legal scholarship, such an approach necessarily highlights many of the deficiencies in the existing legal framework. However, this is complemented by an equal interest in the human–environment interface. To fulfil the need to explore the human/place/environment dynamic I adopt the ‘muddy boot’ tradition of geographers to develop an understanding of how people respond to regulatory regimes. In this chapter my aim is to expose the linkages between human rights and environmental protection scholarship with the place-based work of (human) geographers. This is an ambitious project; there are manifold challenges in linking the universalising narrative of human rights to enhance environmental protection. Yet, the vehicle to undertake this venture falls, arguably, to law and geography scholars – those interested in exposing the relational, heterogeneous and place-based dimensions of our world. The work of legal geographers can extend environmental law scholarship beyond an abstract conception of space towards a clearer, situated understanding of the importance of place in creating effective protective regimes. This is part of a turn towards creating a legal geography methodology in which there is a greater reflexivity about the methods of research (see I Braverman, N Blomley, D Delaney and A Kedar (eds), The Expanding Spaces of Law: A Timely Legal Geography [Stanford University Press 2014], Ch 5).