Research Methods in Consumer Law
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Research Methods in Consumer Law

A Handbook

Edited by Hans-W. Micklitz, Anne-Lise Sibony and Fabrizio Esposito

Consumer law is worthy of greater academic attention at a time when many new questions arise and old ones need new answers. This unique handbook takes the reader on a journey through existing literature, research questions and methods. It builds on the state of the art to offer a springboard for jumping to the heart of contemporary issues and equips researchers with a starter’s kit to weave together rich traditions, ranging from socio-economics to behavioural analysis.
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Chapter 2: Conceptual foundations for a European consumer law and behavioural sciences scholarship

Fabrizio Esposito

Abstract

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 emphazises 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.

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