This chapter examines the roles of empirical research in consumer law. It does so from a contemporary perspective, taking into account the increased recourse to empirical data both in legal scholarship and in policy-making in conjunction with the behavioural turn. It addresses primarily legal researchers educated in a doctrinal tradition who take an interest in consumer law and are considering adding an empirical dimension to their work or want to incorporate empirical work among the sources they use. In this perspective, section 1 offers a typology of legal questions and discusses how each relates to empirical issues. A distinction is drawn between internal legal questions (questions about how rules relate to one another) and external legal questions (questions about law and the world). It is shown that, while external legal questions about effectiveness and efficiency of rules present a natural affinity with empirics, internal legal questions can also have an empirical component. Taking examples in consumer law, the chapter illustrates that empirical issues lie in the middle of questions about the validity, proportionality or interpretation of rules. Section 1 also highlights the particular interest of one type of external legal question for empirical research, besides issues of effectiveness and efficiency, namely, reality-check questions, which confront implicit behavioural claims embedded in the law with what is known of consumer behaviour (or firms’ behaviour). Section 2 reviews an illustrative selection of recent empirical work, which, remarkably, all pertain to external legal questions. It characterises as rhetorical the use of data in legal argument and illustrates this claim with two series of examples. Legal discourse based on data which express a critique of existing legal regimes provide the most striking illustrations. The rhetorical intensity recedes in reflection about policy inception and fine-tuning of policy-interventions. Yet, all the examples show that lawyers only ever use data to make arguments. Turning to enforcement of consumer law, a recent trend in the literature advocates more data-intensive enforcement methods. Such proposals, together with substantive and procedural questions raised by algorithmic powered commercial practices provide rich perspectives for further research outlined in section 3.
Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito
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.