''Who Calls the Tune? Stock Taking of Behavioural Consumer Protection in Europe' by Hans-W. Micklitz, Anne-Lise Sibony and
Fabrizio Esposito in Micklitz, Sibony and Esposito (eds)
Research Methods in Consumer Law (Elgar, 2018) comments
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.
...
The development of the consumer or consumption society, the rise of
consumer law and the emergence of consumer law research go hand in
hand. The cautious move from a production to a consumption society
started after the First World War. It was brutally interrupted through the
Second World War, and regained pace in the after-war period all over
Europe, while the US was 10 years ahead. The turning point of consumer
policy – not yet consumer law – was the famous declaration of President
John F. Kennedy on 13 March 1962, in which he outlined the basic rights
of consumers. Much more obvious than the gradual transformation of
the society were the scandals and crises that accompanied consumer law
and policy from the beginning. Ralf Nader’s Unsafe at Any Speed, published only a year after the Kennedy Declaration, describes and
analyses the construction and production deficits of the American car
industry. His book not only gained cult status, but also stood as a
paradigmatic monument for what was to turn into the constitutive driver
of consumer law, namely, an endless chain of scandals, large and small. It
suffices to recall Thalidomide, Glycol wine or Dieselgate, at the ‘upper’
level (protection of health and safety), or overpriced consumer credits,
Schrottimmobilien (‘junk property’) or the subprime crisis at the ‘lower’
level (protection of economic interests).
US Policy, OECD and the EU
In the first decades of the consumer movement, politically associated
with the change from the Democratic President Carter to the Republican
President Reagan, the US set the tone with groundbreaking changes in
the development of product safety law, consumer credit law and financial
services, as well as consumer class actions and the mandate granted to
the Federal Trade Commission to fight unfair and misleading advertising.
The US channelled the new policy field via the Organisation for
Economic Co-operation and Development (OECD) to Europe. Within the
OECD, the newborn Consumer Policy Committee initiated a series of
consumer policy documents in the 1970s and 1980s, largely inspired by
the US innovations. Until the adoption of the Single European Act,
European institutions, more precisely the European Commission, had a
weak legitimacy resulting from the two consumer policy programmes of
1976 and 1981 adopted by the European Council with a thin legal basis
in the Treaty. In the aftermath of the Single European Act, the European
Commission discovered consumer policy and consumer law as a key
instrument to complete the Internal Market Project. This was the birth of
the confident consumer rhetoric (which later culminated in the ‘reasonably
well-informed and reasonably observant and circumspect’ average
consumer standard coined by the European Court)9 and its potential abuse.10 Before that date, consumer policy was largely in the hands of the
member states, which developed their particular version of consumer law
within the respective legal traditions and legal cultures.
There was a type of competition between the OECD and the European
Union (EU) Commission between the late 1970s and early 1980s. Backed
by the new mandate in the Single European Act in 1985, the EU took
over and became the main driver of consumer policy and consumer law
ever since. The political debate on EU enlargement revitalised the
institutional conflict between the EU and the OECD, at least for a short
while. However, when the old member states decided to open the doors
of the EU to the former communist states in Middle and Eastern Europe,
the OECD lost its political influence. The enlargement allowed the EU
to make accession of candidate states conditional on adjusting their legal
systems. Since the 1970s, the former communist states had also experienced
a move towards a consumption society – though much less
developed than in the West – that left traces in their socialist legal
systems. There was a particular variant of consumer law and policy in the
communist states that never gained political attention in the enlargement
process. The imposition of EU consumer law on the new member states
led to the coexistence of the old socialist and the new democratic laws
side by side, at best an amalgam of former socialist laws and legal
cultures with the new consumer laws adopted before and after EU
membership.
In recent years, the OECD is back in the game of inspiring EU
consumer law as it has developed an interest in behavioural insights in general and consumer law in particular.13 Its Consumer Policy Committee
in particular constitutes a forum where the Commission brings its
own experience and from which it takes inspiration.
The goes on to comment
A few years ago, one of us published a critical reflection on the state of
legal scholarship in Europe and proposed an agenda for a European
debate. A particularly pressing point was found in the ‘risk of herd
behaviour in legal research’: herd behaviour implies that researchers choose to follow ‘hot topics’ and
trends, often initiated by policymakers (eg the European Commission) instead
of developing their own agenda. What is worse is that they do it without
questioning the preconceptions on which these choices rest. … In many cases,
the authors do not even bother to explain on whose shoulders they stand.
The starting point of that reflection was the opposition between ‘doctrinalist’
and ‘multidisciplinarian’ approaches to legal scholarship and
how the mainstream is dominating the research agenda. One of the
proposals advanced on that occasion is of particular relevance for
consumer law research, where the growing interest for the findings of
behavioural sciences is a win for the multidisciplinarians, but takes place
against a backdrop dominated by the doctrinalist approach and a lack of
awareness of the long history of socio-legal research. Herd behaviour can
be dangerous, but at the same time it is not necessarily bad, as long as the
preconceptions and the intellectual context are disclosed.
It takes a critical mass to make up a strand of scholarship. At the same
time, the risk is that energies will be wasted in addressing problems that
have already been studied for some time by others. Worse still, ignoring
the relevant research produced in other research domains can lead to erroneous conclusions. The dilemma is when to accept and when to
challenge the wisdom of the mainstream. In this regard, there is an
important lesson to be learned from the behavioural movement. How the
early work in psychology made its way to its successive applications in
economics, in the social sciences and, finally, in its relationship with the
law is a tale of integration between more and less established strands of
research.44 The lesson it teaches relates just as much to the circulation of
ideas in academia as it does to the substance of behavioural research.
That is, as herds have leaders, it is important to understand what makes
them leaders and to challenge them on their own grounds. In this way,
highly original and critical research can be perceived as a constructive
contribution to mainstream research. However, these leaders and their
advocacy have to be placed in context and constantly questioned. This is
the only way to keep the necessary distance from the field.
It is concerning when scholars respond acritically to the stimuli
coming from leaders, regardless of who these leaders are (for example,
the European Commission, American legal scholars and Israeli cognitive
psychologists). What is at least as concerning is scholars not responding
to the stimuli coming from outside the mainstream (the truck approaching
at high speed or the wolves hiding in the bushes are stimuli the herd
members have to be aware of). As for any other social practice, a field of
research is characterised by a specialised vocabulary and a shared
understanding of why some research is part of the field and other is not.
At some point, even the researcher most open to interdisciplinarity will
consider some findings irrelevant for his or her own field. For example,
while we can understand the importance of gravitational waves for
research in physics, we candidly admit that it is hard for us to see how
proof of their existence can possibly matter for consumer research.
However, we cannot and do not want to exclude the possibility that
someone will show us how gravitational waves are important for consumer
research – perhaps with regard to consumer safety.
New trends establish the conditions of admittance, but should not
exclude strangers once these conditions are fulfilled, nor should they
forget about previous research related to the very same subject though
under a different branch of science. The establishment of behavioural
economics and law and behavioural economics illustrate these points.
The ability of behavioural scientists to influence the economic debate is
particularly remarkable given how closed to other disciplines economics
had become (which led some to refer to economic imperialism45). It took
Kahneman and Tversky a lot of hard work over and above their initial
findings about human decision-making to make the implications of their
research so clear that economists could not ignore them. It took even
longer for a Nobel prize in economics to be awarded to Kahneman for
their joint work (by the time Tversky had died). In the long run, the
endeavour was successful, as evidenced by the Nobel prize for economics
awarded to Richard Thaler in 2017. How behavioural analysts were
able to successfully influence economists thus becomes a source of
inspiration for those trying to steer an academic debate in new directions.
However, what is missing right from the beginning is the intellectual link
to the founding fathers of social behaviour and socio-legal research, to
E. Ehrlich, M. Weber and later M. Galanter, D. Trubek, V. Gessner, to
name just a few leading figures.46 They revitalised socio-legal research
from the 1960s onward.
