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Nudge and the Law: A European Perspective by Alberto Alemanno and Anne-Lise Sibony (Eds) Oxford: Hart Publishing, 2015, 336 pp. € 50; Hardcover

Published online by Cambridge University Press:  20 January 2017

Fabrizio Esposito
Fabrizio Esposito*
Affiliation:
European University Institute, (Italy), fabrizio.esposito@eui.eu.
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Type
Book Reviews
Information
European Journal of Risk Regulation , Volume 6 , Issue 2 , June 2015 , pp. 331 - 340
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Copyright © Cambridge University Press 2015

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References

1 To date Nudge and the Law has not been published and I am thankful to the Editors and the publisher for allowing me to read it in preview. The shortcoming of this privilege is that page numbers are not confirmed yet. Therefore when quoting or referring to an essay in the volume, I refer only to the name of the Author(s) and to the chapter.

2 Alemanno, Alberto and Sibony, Anne-Lise, “The Emergence of Law and Behavioural Sciences: A European Perspective”, in Alemanno, Alberto and Sibony, Anne-Lise (eds.), Nudge and the Law (Oxford: Hart Publishing, 2015), chapter 1.Google Scholar

3 The volume is structured as follows: foreword and chapter 1; Part I: Integrating Behavioural Sciences Into EU Lawmaking, chapters 2–4; Part II: Debiasing Through EU Law and Beyond, chapters 5 and 6; Part III: The Impact of Behavioural Sciences and EU Policies, chapters 7–11; Part IV: Problems with Behavioural Informed Regulation, chapters 12–14.

4 Alemanno, Alberto and Sibony, Anne-Lise, “Epilogue: The Legitimacy and Practicability of EU Behavioural Policymaking”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 14.Google Scholar

5 These two lines of inquiry answer the following two questions formulated by the Editors: “when is it legitimate for States to use psychology to inform policy? … how can behavioural insights in practice be incorporated in the decision making processes?”.

6 Alemanno and Sibony, “The Emergence of Law and Behavioural Sciences”, supra note 2.

7 On this notion, see below, Section III.

8 See below, Section VI.

9 Respectively, Fabiana Di Porto and Nicoletta Rangone, “Behavioural Sciences in Practice: Lessons for EU Rulemakers” and Dunlop, Claire A. and Radaelli, Claudio, “Overcoming Illusions of Control: How to Nudge and Teach Regulatory Humility”, both in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2.Google Scholar

10 Perez, Oren, “Can Experts Be Trusted and what Can Be Done About it? Insights from the Biases and Heuristics Literature”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 5.Google Scholar

11 Feldman, Yuval and Lobel, Orly, “Behavioural Trade-offs: Beyond the Land of Nudges Spans the World of Law and Psychology”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 13.Google Scholar

12 See below, Section II.

13 All emphases in quotations are in the originals.

14 In addition, the source the Editors quote as reference for “law and emotion”, of which “law and behavioural sciences” would be a sub-topic, is Maroney, Terry A., “Law and Emotion: A Proposed Taxonomy of an Emerging Field”, 30(2) Law and Human Behavior (2006), pp. 119–142 CrossRefGoogle Scholar. The subject matter of law and emotion is identified by Maroney with the “emotional aspects of our substantive and procedural law”. This confirms the weak force of the argument against the label “behavioural analysis of law”.

15 Interestingly, the co-extension of “law and behavioural sciences” and “behavioural analysis of law” is similar to the co-extension between “law and economics” and “economic analysis of law”.

16 Maroney, “Law and Emotion”, supra note 14, quoting Bandes, Susan A., The Passions of Law (New York: New York University Press, 1999).Google Scholar

17 However, this type of reduction seems to be used by Di Porto and Rangone, “Behavioural Sciences in Practice”, supra note 9.

18 Definitions are given in: Sunstein, Cass R., “Foreword”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2Google Scholar; Alemanno and Sibony, “The Emergence of Law and Behavioural Sciences”, supra note 2; van Aaken, Anne, “Judge the Nudge: In Search of the Legal Limits of Paternalistic Nudging”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 4Google Scholar; Perez, “Can Experts Be Trusted and what Can Be Done About it?”, supra note 10.

19 On the second point, see below, Section III.

20 Baldwin, Robert, “From Regulation to Behaviour Change: Giving Nudge the Third Degree”, 77(6) The Modern Law Review (2014), pp. 831–857.CrossRefGoogle Scholar

21 See Sibony, Anne-Lise and Helleringer, Geneviève, “Consumer Law and Behavioural Sciences”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 9Google Scholar and Borgesius, Frederik Zuiderveen, “Behavioural Sciences and the Regulation of Privacy on the Internet”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 8.Google Scholar

22 Feldman and Lobel, “Behavioural Trade-offs”, supra note 11.

23 Sibony and Helleringer, “Consumer Law and Behavioural Sciences”, supra note 21 and van Cleynenbreugel, Pieter, “Conduct of Business Rules in EU Financial Services Regulation: Behavioural Rules Devoid of Behavioural Analysis?”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 11.Google Scholar

24 On paternalism in Nudge and the Law, see below, Section VI.

25 Sunstein, “Foreword”, supra note 18.

26 Ibid.

27 Galbraith, John K., The Affluent Society, 3rd ed. (London: Deutsch, 1977), at p. 127.Google Scholar

28 See in particular van Aaken, “Judge the Nudge”, supra note 18, but also Sunstein, “Foreword”, supra note 18; Di Porto and Rangone, “Behavioural Sciences in Practice”, supra note 9; and finally Cserne, Péter, “Making Sense of Nudge-Scepticism: Three Challenges to EU Law's Learning from Behavioural Sciences”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 12.Google Scholar

29 Bubb, Ryan and Pildes, Richard H., “How Behavioral Economics Trims its Sails and Why”, 127(6) Harvard Law Review (2014), pp. 1593–1678, at p. 1628Google Scholar. It might appear surprising to list Sunstein among the targets of this critique, but see below, Section III. Moreover, already Bubb and Pildes charged Sunstein of artificial truncation.

30 Carolan, Eoin and Spina, Alessandro, “Behavioural Sciences and EU Data Protection Law: Challenges and Opportunities”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 7.Google Scholar

31 “Mental bandwidth” is an expression drawn from Sendhil Mullainathan and Eldar Sharif, Scarcity: Why Having Too Little Means So Much (London: Allen Lane, 2013). Although not explicitly defined neither in the original source nor by Alemanno and Sibony, “mental bandwidth” refers to the limited cognitive capacities at one's disposal. It seems therefore accurate to consider it the human trait causing information overload. If the previous claim is correct, mental bandwidth is roughly synonymous to what Alemanno and Sibony call scarcity of attention.

32 In this regard, it must be mentioned that Perez and Cserne express brief skeptical or critical views over this distinction.

33 Alemanno and Sibony, “Epilogue”, supra note 4.

34 See the contributions by Di Porto and Rangone, “Behavioural Sciences in Practice”, supra note 9; Quigley, Murieann and Stokes, Elen, “Nudging and Evidence-Based Policy in Europe: Problems of Normative Legitimacy and Effectiveness”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 3Google Scholar; Perez, “Can Experts Be Trusted and what Can Be Done About it?”, supra note 10; Dunlop and Radaelli, “Overcoming Illusions of Control”, supra note 9; and finally Cserne, “Making Sense of Nudge-Scepticism”, supra note 28.

35 Dunlop and Radaelli, “Overcoming Illusions of Control”, supra note 9.

36 See Di Porto and Rangone, “Behavioural Sciences in Practice”, supra note 9 and Perez, “Can Experts Be Trusted and what Can Be Done About it?”, supra note 10.

37 Zuiderveen Borgesius, “Behavioural Sciences and Privacy on the Internet”, supra note 21.

38 Alemanno, Alberto, “What Can EU Health Law Learn from Behavioural Sciences? The Case of EU Lifestyle Regulation”, in Alemanno, and Sibony, (eds.), Nudge and the Law, supra note 2, chapter 10.Google Scholar

39 Willis, Lauren E., “When Nudges Fail: Slippery Defaults”, 80(3) The University of Chicago Law Review (2013), pp. 1155–1229, at p. 1157, fn 3.Google Scholar

40 Nourse, Victoria F. and Shaffer, Gregory C., “Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?”, 95(1) Cornell Law Review (2009), pp. 61–137.Google Scholar

41 Cserne, “Making Sense of Nudge-Scepticism”, supra note 28.

42 Feldman and Lobel, “Behavioural Trade-offs”, supra note 11.

43 Sunstein, Cass R. and Thaler, Richard H., Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven, CT: Yale University Press 2008), at p. 60.Google Scholar

44 Discussed by the contributions collected in Part I.

45 van Cleynenbreugel, “Conduct of Business Rules in EU Financial Services Regulation”, supra note 23.

46 Sibony and Helleringer, “Consumer Law and Behavioural Sciences”, supra note 21.

47 See van Aaken, “Judge the Nudge”, supra note 18.

48 Alemanno, “What Can EU Health Law Learn from Behavioural Sciences?”, supra note 38.

49 See Wilhelmsson, Thomas, “Varieties of Welfarism in European Contract Law”, 10(6) European Law Journal (2008), pp. 712–733 CrossRefGoogle Scholar, in particular at p. 714, observing how traditional information duties “from the point of view of distributive justice, (…) are problematic, as they tend to improve the position of strong consumers, whilst offering little help to the more vulnerable ones”.

50 On the former see Trebilcock, Michael J., The Limits of Freedom of Contract (Cambridge, MA: Harvard University Press 1991), at pp. 241–248 Google ScholarPubMed while on the latter see Dworkin, Ronald M., “Is Wealth a Value?”, 9(2) The Journal of Legal Studies, pp. 191–226.CrossRefGoogle Scholar

51 Feldman and Lobel, “Behavioural Trade-offs”, supra note 11.

52 This topic cannot be analysed here for two reasons. First, as just argued, it falls outside the scope of Nudge and the Law. Second, it is more relevant for law and economics than for law and behavioural sciences.

53 Please note that a useful list of references regarding competition law and behavioural sciences can be found in footnote 2 of Sibony and Helleringer, “Consumer Law and Behavioural Sciences”, supra note 21.