The Behavioral Divide
A Critique of the Differential Implementation of Behavioral Law and Economics in the US and the EU
A behavioral divide cuts across the Atlantic. Despite the recent surge of
behavioral analysis in European academia, a scrutiny of decisions by courts and
regulatory agencies in the US and the EU reveals striking differences. While in the
US rulings by courts and regulatory agencies progressively take insights from
behavioral economics into account, EU courts and agencies still, and even increasingly,
cling to the rational actor model. These inverse trends can be uncovered
in the interpretation of legal concepts of human agency, ie, of those elements
in a legal order which refer, implicitly or explicitly, to a model of rationality of
human actors. More particularly, this paper reviews the concepts of consumers
and of users, in consumer law and product liability respectively, to underscore
the claim of the behavioral divide. Importantly, the divergence between EU and
US private law practice calls for a normative evaluation. In the face of empirical
uncertainty about the existence, direction and intensity of biases, the most
attractive legal concept of human agency is a pluralistic one, assuming the
simultaneous presence of boundedly and fully rational actors. In concrete applications,
this paper shows that a pluralistic perspective urges a revision of the
concept of the reasonable consumer, both in US and EU consumer law. Furthermore,
such a view leads to the adoption of a more boundedly rational user
concept in product liability. The pluralistic, yet more boundedly rational concepts
thus have far-reaching consequences both for private law theory and its concomitant
case law.
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Dieser Beitrag ist mit Zustimmung des Rechteinhabers aufgrund einer (DFG-geförderten) Allianz- bzw. Nationallizenz frei zugänglich.