During the past three to four decades the ‘correct’ comparative method has become the object of an intensive debate. This debate now also covers empirical methods that have started to ‘infiltrate’ comparative law ever since the turn of the twenty-first century. Behavioural analysis, however, has not yet come into the picture. The following chapter, therefore, explores how behavioural research can be put to comparative use and sheds light on recent attempts to do so. It concludes that combining comparative and behavioural insights may further our understanding of consumers’ needs and improve our ability to design legal responses. In particular, it may help to understand why legal systems are differently designed in different countries and why the same rules may trigger different reactions in different countries. The chapter, therefore, suggests that behavioural scientists and comparative lawyers should work closely together to better understand cross-cultural consumer behaviour and the complex relationship between consumer behaviour and consumer law.
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References to the ‘architecture’ of European Consumer Law entail the risk of whitewashing potential differences in the conceptual, methodological and normative underpinnings of this field of law. Behavioural analysis has gained remarkable attraction with policy-makers, but it also has also largely replaced socio-legal research which used to accompany the making of European Consumer Law during the first 25 years or so of its existence. These more traditional approaches of social sciences have developed models of behaviour which need to be reconciled with the analytical concepts of behavioral economics. However, the conceptual differences – or similarities – between socio-legal research and behavioural analysis are rarely discussed. After explaining the fundamental importance of models of human behaviour for consumer law, this chapter argues that these two approaches start from fundamentally opposite assumptions: while behavioural analysis is based on the functional rationality of the Homo oeconomicus with its focus on individual choice, socio-legal research roots are in the value rationality of the Homo sociologicus which instead draws attention to social embeddedness. Even if the starting points are different, the question remains whether both models are about to converge or whether their divergences prevail. Owing to the fundamental importance of those two behavioural models, the answer shapes the essential pillars of European Consumer Law’s architecture. It determines nothing less than the architectural style, more precisely whether that style contributes to a coherent, harmonious ensemble, or whether it looks bitty and scrappy.
The purpose of this chapter is to present and discuss consumer protection aspects of laws concerning marketing in light of the ‘behavioural turn’ with a view to suggest how behavioural sciences may be used to reconstruct this legal field – and to provide inspiration for further research. First, the law concerning unfair commercial practices is introduced, including in particular ‘the average consumer’ and ‘professional diligence’. These two normative abstractions are hereafter discussed in light of revelations within behavioural sciences (the behavioural turn) and by taking developments in marketing into account. Basically, the idea is to discuss how empirical evidence corresponds with and may affect marketing law. This includes how and to what extent behavioural sciences can be used to draw the fine line between legitimate influence and illegal distortion of consumers’ economic behaviour. Finally, the chapter includes a discussion of law’s role and possible contribution to defining the proper level of consumer protection, including the delicate balancing between paternalism and the consumer’s right to self-determination
There are important behavioural reasons why financial consumers tend to make suboptimal financial decisions. Regulatory responses are warranted. Existing regulations have been designed to protect financial consumers and make them better off, but well-meaning interventions may sometimes make consumers worse off as they contain behaviourally blind spots and are mis-calibrated. The behavioural lens shows that the calibration of such regulation is itself delicate: well-meaning regulatory interventions that do not take into account behavioural insights may make consumers worse off. The limited cognitive power of financial consumers and their preference for the present are two large elements of the hidden behavioural iceberg on which traditional regulatory interventions have often crashed, even as behavioural realities are becoming more present in the regulatory conversation. Financial firms are often in a position to exploit behavioural traits, which increases the necessity for regulators to take into consideration behavioural realities. It also strengthens the case for performance-based requirements that put the onus on firms to harness behavioural traits in a manner that is favourable to consumers. Meanwhile, interventions designed to modify the choice architecture can be truly effective under certain conditions. In particular, there is a growing interest in personalised regulatory interventions that take into account individual differences in behaviour and degrees of rationality.
Laurence Boisson de Chazournes and Christina Leb
In addition to access to water for drinking and direct human consumption, water generates a multitude of other benefits; it grows food, produces electricity, and provides transport routes and habitat, among others. This chapter explores the concept of benefit sharing applied by countries to transboundary water management to increase the benefits they can derive from shared water resources and its relationship to the principle of equitable and reasonable utilization, one of the corner-stone principles of international water law. Based on case studies and international practice, the chapter describes legal mechanisms and rules riparian States can use to increase and share benefits that can be derived from cross-border rivers, lakes and aquifers.
Michael L. Barnett and Robert M. Salomon
Are financial and social performance negatively or positively associated? Extant theoretical and empirical research has supported both contradictory positions (Margolis and Walsh, 2003; Orlitzky, Schmidt, and Rynes, 2003; Rowley and Berman, 2000; Mahon and Griffin, 1999; Roman, Hayibor, and Agle, 1999; Griffin and Mahon, 1997; Ullmann, 1985). In this paper, we reconcile these divergent views through an empirical study of socially responsible investing (SRI).
This chapter presents the crime of virtual reality hacking and suggests that it challenges the inherently flawed legal doctrine governing unauthorized access to computers and data. Thirty years ago, lawmakers in countries all over the world enacted new and specialized computer misuse legislation, acting on the notion that existing criminal law is insufficient to the task of prosecuting and resolving computer hacking cases. Unfortunately, the resulting unauthorized access regime has created significant problems. One is the potential criminalization of everyday technological behavior, brought about by an overly extensive normative scope; another is chronic underenforcement; and yet another is a wider chilling effect on creativity and digital freedoms. Lately, interest in virtual reality, a fairly old concept, has reawakened. Unlike other information technologies, virtual reality is built to deliver a psychological effect believably simulating the physical world; it possesses three-dimensional spatial characteristics, infuses users with real legal expectations, and mirrors human social institutions and values. Many actions within virtual reality, lawful and criminal, are subjectively and conceptually closer to physical acts than to user actions in cyberspace. Consequently, considering some forms of virtual reality intrusion may warrant reverting back to the ancient common law doctrines of burglary and trespass as an alternative to the severely flawed modern computer misuse laws.
Although widespread agreement exists on the general importance of workforce skills for economic growth and the regeneration of regional economies, much of the existing research is hobbled by imprecise measurement and the use of vague proxies for skill such as years of education. As a result, many of the existing policy recommendations on this topic consist of unhelpful exhortations to "get more education." In this chapter, the author argues that a critical need exists for research into the impact of precisely measured skills. The author further argues that in order to understand the potential and challenges of skill-related economic development policies, it is necessary to go beyond the assessment of individual skills by paying attention to both the institutions that produce skills and the interplay of supply and demand for skills. After a review of the current state of knowledge across multiple disciplines, the chapter concludes with promising avenues for future skill research.
A growing number of human rights treaties contain provisions specifically addressing biotechnological concerns. Human rights bodies constantly deal with biotech-related cases. Human dignity has inspired and guided the development of human rights in this area. Many human rights have a bioethical dimension. The right to life involves fundamental bioethical questions, such as the beginning of human life and the personhood of embryos. Biomedical research is linked to the protection of health. The right to adequate food may lead to an enhancement of support for agricultural research. The respect for personal autonomy requires respect for the principle of informed consent in biomedical and genetic research. The right to privacy protects confidentiality of genetic data and the individual’s right to know (or not to know) about the results of genetic tests. The right to family life might also be a relevant factor in the management of genetic data. Finally, biotechnology raises new risks of discrimination (e.g. discrimination based on genetic features).
Maartje van der Woude
While drawing from case law of the Court of Justice for the European Union (CJEU), this chapter highlights border policing in three jurisdictions, namely Germany, France and the Netherlands. The modality of state control over the mobility of individuals has been redefined, resulting in the emergence of a form of ‘bordering’ through internal police and/or immigration checks. This is a global phenomenon, as countries throughout the world are struggling to better ‘manage’ mobility. Many nation states engage in border reconstruction projects as a way to reconstitute sovereignty in a globalized world. Within the “Schengen area”, policing practises have been developed as well as regulatory devices to filter and channel through people and as ways to regulate the time and pace of migration. EU Member States have had an ambiguous relationship with the notion of open borders ever since the onset of Schengen. Nevertheless, an exemplary EU legal framework has been established that governs intra-Schengen border policing as well as the Schengen Border Code for policing mobility and migration. The chapter ends with some broader reflections on the future of the policing of migration and movement in the EU.