Description
Current debates in behaviourally informed consumer law focus on (1) the use of nudging as a regulatory tool to make consumers better off, (2) the appropriate regulation of personalised online advertising that exploits consumer vulnerabilities and (3) the regulation of design choices on digital platforms that manipulate consumers (dark patterns). Scholars commonly discuss these issues within two paradigms. The first is behavioural law and economics as a frame of analysis. The second is an analysis of consumer biases and their implications for law and policy. Both paradigms rely on rational choice theory as defined in neoclassical economics as a normative theory of consumer choice.This paper critiques rational choice theory as a normative foundation for behaviourally informed consumer law and develops alternatives. First, I demonstrate that rational choice theory is not an appropriate normative theory of choice under conditions of true uncertainty and computational intractability, which are common in the real consumer world. Second, I show how two alternative frameworks – ecological rationality theory and autonomy theory – can function as normative foundations for behaviourally informed consumer law. Ecological rationality and autonomy, if conceptualised as normative theories of decision-making, differ significantly from rational choice theory. Adopting either one of the alternative frameworks would lead to significant changes (compared to behavioural law and economics) in terms of what consumer biases are, when they occur, how they are caused and when they warrant regulation.
With regard to ecological rationality theory, I first outline the core elements of the theory. Ecological rationality determines rationality not in terms of conformity with a set of rules and axioms but in terms of success of cognitive strategies in the real world. I then propose that the theory can be incorporated into the dominant paradigm of behavioural law that analyses the implications of human biases for law and policy. Yet, I will also argue that a lawmaker who intends to rely on this theory faces significant obstacles, which limit the utility of ecological rationality theory for behaviourally informed consumer law.
With regard to autonomy theory, reasoned decision-making which is based on conscious reflection is often seen as the paradigm model of autonomous decision-making. A rational choice is thus a choice that is the result of a deliberation process. This benchmark has come under criticism from scholars who demand a more psychologically realistic conception of autonomy based on behavioural insights about consumer decision-making. Taking this criticism into account, I discuss behaviourally informed conceptions of autonomous choice. I posit that a normative autonomy standard that integrates heuristic decision-making without reflective deliberation does not break the connection between autonomous and rational decision-making. Consumer choices can be guided by good reasons without consumers engaging in reflective deliberation. Therefore, a behaviourally informed conception of autonomous decision-making can provide a normative foundation for behaviourally informed consumer law.
| Period | Jun 2022 |
|---|---|
| Event title | Annual Conference of the UK branch of the International Association of Legal and Social Philosophy |
| Event type | Conference |
| Location | University of Surrey, United KingdomShow on map |
| Degree of Recognition | National |