Nudging - Possibilities, Limitations and Applications in European Law and Economics

This anthology provides an in-depth analysis and discusses the issues surrounding nudging and its use in legislation, regulation, and policy making more generally. The 17 essays in this anthology provide startling insights into the multifaceted debate surrounding the use of nudges in European Law and Economics.

Nudging is a tool aimed at altering people’s behaviour in a predictable way without forbidding any option or significantly changing economic incentives. It can be used to help people make better decisions to influence human behaviour without forcing them because they can opt out. Its use has sparked lively debates in academia as well as in the public sphere. This book explores who decides which behaviour is desired. It looks at whether or not the state has sufficient information for debiasing, and if there are clear-cut boundaries betweenpaternalism, manipulation and indoctrination. The first part of this anthology discusses the foundations of nudging theory and the problems associated, as well as outlining possible solutions to the problems raised. The second part is devoted to the wide scope of applications of nudges from contract law, tax law and health claim regulations, among others.

This volume is a result of the flourishing annual Law and Economics Conference held at the law faculty of the University of Lucerne. The conferences have been instrumental in establishing a strong and ever-growing Law and Economics movement in Europe, providing unique insights in the challenges faced by Law and Economics when applied in European legal traditions.

Part I: Foundations.- 1.The Critical and Problematic Role of Bounded Rationality in Nudging; Avishalom Tor.- 2.Beneficial and Exploitative Nudges; Bruno S. Frey and Jana Gallus.- 3.The Crucial Importance of Interests in Libertarian Paternalism; Mark D. White.- 4.Condorcet’s Jury Theorem as a Rational Justification of Soft Paternalistic Policies:A Philosophical Note; Malte Dold.- 5. To What Extent Should the State Protect Human Beings from Themselves? An Analysis from a Human Rights Perspective; Peter G. Kirchschläger.- 6. Nudging is Judging: The Inevitability of Value Judgments Consequences of the Collapse of the Fact/Value Dichotomy for Behavioural Law and Economics; Ariel David Steffen.- Part II: Applications.- 7. Nudging and the Principle of Proportionality: Obliged to Nudge?; Mark Schweizer.- 8. Nudging in Swiss Contract Law? An Analysis of Non-Mandatory Default Rules from a Legal, Economic and Behavioural Perspective; Klaus Mathis and Philipp Anton Burri.- 9. Designing Disclosures: Testing the Efficacy of Disclosure in Retail Investment Advice; Geneviève Helleringer.- 10. Neutral Third-Party Counselling as Nudge Toward Safer Financial Products? The Case of Risky Mortgage Loan Contracts; Piotr Tereszkiewicz.- 11. The Potential Use of Visual Packing Elements as Nudges: An Analysis on the Example of the EU Health Claims Regime; Kai Purnhagen, Erica van Herpen and Ellen van Kleef.- 12. Nudging – Information, Choice Architecture and Beyond: Theory and Applications in Financial Markets Law; Rainer Baisch.- 13. Nudging and Environmental Law: Perspectives and Examples; Felix Ekardt and Jutta Wieding.- 14. Nudging Governments? Behavioural Regulation in International Trade; Georgios Dimitropoulos.- 15. Nudging in Tax Law? Eyetracking Research on the Limits of Efficacy of Legal Definitions; Mariusz J. Golecki, Marcin Romanovicz and Jerzy W. Wojciechowski.- 16. Nudging as a Tool for Media Policy: Understanding and Fostering Exposure Diversity in the Age of Digital Media; Mira Burri.- 17. Academic Fraud at Hogwarts: Behavioural Law and Economics Lessons for Muggles of all Ages; Rute Saraiva.- About the Authors.- Index.