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Section 5 analyses the Archimedean problem for law and behavioural sciences, how the law can incorporate behavioural insights. The focus is on EU law. First, the section gives a taxonomy of the possible incorporation strategies. Second, it suggests that the case law of the CJEU actually provides ample room to use behavioural insights in the definition of the images of the consumer and its negatives in EU law and in the construction of the concept of consumer weakness.

Third, it builds an argument grounded in the case law of the CJEU in favour of the legitimacy of using behavioural insights in EU legal argumentation even in the face of scientific uncertainty. Section 6 concludes. European contributions to the basic behavioural vocabulary: A critical account European scholars have offered significant contributions to the development of a reasoned vocabulary for behaviourally-informed legal discourse.

In this regard, two topics are of particular relevance: first, the definition and taxonomy of nudges Sec. To these two topics, this section adds the distinction between two notions of behavioural market failure Sec. While these contributions are indeed important, they are not always entirely persuasive.

The analysis therefore also includes suggestions to further advance the clarity of the basic behavioural vocabulary. A proposal The definition of nudges and their taxonomy is an area where European scholars have given important contributions. To do so, it requires three changes: referring to effects instead of functions, abandoning the predictability condition, and eliminating condition 1.

The concept of function in philosophical analysis is associated with the idea that the function of an object is a beneficial effect to its user. Downgrading a nudge from a function to an effect has the advantage of allowing the distinction between nudges in the interest, respectively, of the nudgee, the nudger, third parties, or of no one. One level is about how the world is, the other about our account, as humans, of how the world is. The effect of a behavioural trait has to be predicable to be theoretically accountable, but a behavioural trait can be effective regardless of anyone so predicting neither the nudger, nor the nudgee, researchers, policy-makers, etc.

Thus, being predictable cannot matter for an effect of the choice architecture to qualify as a nudge. Otherwise, a choice architecture can nudge only when we learn how to predict how it alters behaviour. However, if that 9 Pelle G.

Behavioral Science and Nudges

For example, using pre-ticked boxes in web pages is a nudge even if the webmaster is completely unaware that behavioural research suggests pre-ticked boxes increase sales, subscriptions, etc. However, lawyers know that responsibility does not require intentionality. One can be responsible for negligence, or even for failing to behave accordingly to an objective standard. Therefore, accepting the possibility that a nudge is made negligently or even unintentionally does not rule out the dimension of responsibility.

On the contrary, it allows us to reflect on the problem of nudges and responsibility without ruling out — by definition — that an unintentional nudger is nevertheless responsible, or at least liable, for having nudged. With these three changes, the minimal definition is more accurate, but still not entirely convincing on its own terms. Sunstein and Richard H. Indeed, the expressive function of law is sometimes considered as something threatened by nudges. Provided that the Econ is self- interested and extrinsic motivation derives only from material incentives such as money and social sanctions, the conceptual implication is that the effects of the choice architecture making use of bounded self-interest and social norms are also nudges.

Baldwin identifies three degrees of nudges on the grounds of the level of intrusiveness in individual deliberation. First-degree nudges are autonomy preserving and 16 Limitations pointed out, respectively, in Hansen n 9 , and Daniel M. Examples are simple disclosure, warnings, and reminders. Second- degree nudges are more intrusive, but still relatively weak in so far as they are readily identified by the nudgee upon reflection. As case in point, Baldwin presents inertia-based nudges such as default rules: it is always possible to opt-out of the default if one only pays attention.

Third-degree nudges modify the choice architecture in ways that are not readily identified by nudgees, even upon reflection. An example is pictorial warnings on cigarette packages: they elicit a gut reaction of disgust, which the smoker cannot readily reason off. Notably, the difference between these three degrees of nudges is empirical, and perhaps difficult to apply as a matter of generalization. However, the distinction is conceptually convincing, so that more research on the point would be certainly advisable. Alemanno and Sibony also offer an important taxonomy of nudges and nudge related concepts, distinguishing private nudge, counter-nudge, mandated nudge, public nudge, and pure public nudge.

With a mandated nudge, regulation forces a private agent to nudge others for example by mandating that a box be pre-ticked on a form. A public nudge is made by a public entity in the pursuit of a public policy whereas, more specifically, the pure public nudge is a response to behavioural traits in the absence of their exploitative use by other private agents. The use of default opt-outs for organ donation is a clear example of a pure public nudge; it is justified by a public policy having enough organs for transplants and the behavioural traits it is responsive to e.

Reviewers of Nudge and the Law have advanced this taxonomical project. On the one hand, the concept of public nudge has been developed further. In fact, a contrario, the concept of pure public nudge suggests the existence of impure public nudges,22 public nudges with the function of contrasting private nudges. On the other hand, and more generally, nudges can be divided in nudges mitigating and harnessing biases. It is of particular importance, especially in the context of a handbook on legal research in consumer law, to stress the significance of the concepts of private nudges and counter-nudges.

In fact, often the debate — arguably following the focus in the American literature on paternalism — has overlooked the centrality of the problem of private nudges. Private nudges are, however, central to consumer policy and its concern for the imbalance between consumers and professionals. This is especially the case for the part of consumer law which is concerned with the regulation of marketing practices an area of law much more developed in the EU than in the US. In this regard, the concept of behavioural market failures is pivotal.

The primary attempt to offer a thorough analysis of the potential candidates to label the field of legal studies using behavioural insights is given in Nudge and the law by Alemanno and Sibony. However, the independence from economics is arguably a risk in so far as economic insights are valuable for law and policy, and in particular for consumer law and policy.

For a broader discussion, see Esposito n 19 , Moreover, the label allows further distinctions within legal studies. Alemanno and Sibony further claim that law and behavioural sciences is a sub-field of law and emotions. The reduction of law and behavioural sciences to a sub-field of law and emotions is questionable. Law and emotions does not seem to include the relation between behavioural sciences and economics. Additionally, it suggests that all behavioural traits are emotion-based.

To see this, consider the case of a law and literature study on the image of the institution of marriage in romantic literature. The first expression is the title of an edited book based on the 94th Dahlem Workshop, held in Berlin in A central message thereof is that it is crucial for policy discussions to go beyond the idea that rational choice theory remains the normative benchmark. It would indeed be tempting to identify in the distinction between heuristics and the law and nudge and the law the two separate components of law and behavioural sciences.

Unfortunately, this separation does not work. Both frameworks are interested in the relation between the individual and the context in which choices are made called in one case environment and in the other choice architecture. Thus, they represent competing and, no doubt, complementary but also overlapping sources of insights within the field of law and behavioural sciences. Its main strengths are its comprehensiveness and its explicit openness to any behavioural science.

The other candidates are best understood as partially overlapping subfields of law and behavioural sciences. This sub-section discusses instead a concept that is important specifically for consumer law and behavioural sciences, namely the concept of behavioural market failure. Broadly speaking, a behavioural market failure — like other market failures — refers to contexts in which the market does not work ideally.

More specifically, in the case of behavioural market failures, the market mechanism does not provide sufficient incentives to firms to help consumers deal with one or more nudges that are detrimental to them. Within the scope of this definition, it is important to emphasize the presence of two types of behavioural market failures identified in the literature. In other terms, in the first case the market mechanism promotes the harm, while in the second case it fails to avoid he harm. Economic analysis incorporating behavioural insights suggests that firms have incentives to take advantage of behavioural traits, especially of non-salient contractual terms and attributes.

Sunstein, Why Nudge? Yale University Press , The real agents here are the professionals. A retailer offers a very appealing discount for the first two years, and its normal price from there on. However, this normal price is not established in advance, as it is subject to variations in cost components beyond the control of the retailer e. The contract can be terminated at will, with a notice of one month. Under these circumstances, the promotion seems a way to obtain new clients. After all, terminating the contract if the quality is not good or a better offer is available is easy.

This feature becomes especially important for the price at the end of the promotional period, where the threat of the customer terminating the contract should exercise pressure on the provider to charge a low price. Consider now that for some customers the variation of price is not a salient feature of the contract.

In this context, if the provider can reasonably estimate the percentage of clients to whom the price variation is not salient, or can find ways e. For the second type of behavioural market failure to occur, it suffices that market incentives are not strong enough to motivate professionals to help consumers in contrasting the detrimental effects of a nudge.

Thus, in this second case, it is not required that market actors actually take advantage of behavioural traits. Many examples of the first type of behavioural market failure are offered in this handbook. An example could be a printing software that has as default option one-sided printing. A similar case is a car having a green, a city, and a sporting setting that is not set by default on the green one.

Generalizing these ideas, every time a product has as default option a high-level of consumption that does not lead to a gain to the producer, there is arguably a behavioural market failure of the second type. Obviously, some cases are hard to classify. While this appears to be most likely the consequence of inertia, it is not self-evident how it benefits Netflix. Lunn seems to push the implications of behavioural insights for market theory too far.

In fact, his analysis ultimately rests on the assumption that a conceptual framework has to be able to both identify a problem and indicate its solution, otherwise it is not conceptually sound.


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This assumption is not persuasive. At the same time, analyses in the tradition of welfare economics do not seem too impermeable to behavioural 37 The point is different with regard, for example, to Youtube, whose profits are related to the advertisements shown between the reproduction of videos. To conclude, the concept of behavioural market failure is a valuable addition to market analysis.

The insight that there are behavioural market failures helps, in particular, to emphasize that behavioural findings are important to enrich our understanding not only of individual reasoning but also of the fact that our bounded rationality requires more sophisticated inquiries in the working of the economy.

The purpose of this section has been to provide some guidance on the meaning of some of the central terms that are used in the field of law and behavioural sciences. The next section extends the discussion to the axiological concepts used to evaluate the relation between law and behavioural sciences. In broad terms, this debate has developed around two conceptual frameworks, one built on the concept of autonomy, the other on the concept of welfare.

The first argument is that welfarist and autonomist positions are importantly related Sec. In fact, both attach value to individual choice and share a concern for exploitative practices as well as for externalities. Perhaps more importantly, there are at least two versions of both frameworks, and one version is more resistant to the incorporation of behavioural insights than the other. The second argument is that EU law includes value judgments that are hardly reconcilable with the first version of either approach Sec.

According to the autonomist position, both externalities and exploitation are straightforwardly problematic, because their imposition on others violates their autonomy. Autonomy-as-independence is associated with ideas such as negative liberty freedom from coercion and manipulation and formal equality. The conception of autonomy as self-determination does not deny the importance of negative liberty and formal equality but is based on the moral intuition that granting negative liberties and ensuring formal equality is not always sufficient to place us in control of our lives.

For a recent and articulated account of the two positions and a defence of the second as the moral foundation of contract law, see Dagan and Heller n 48 , The welfarist position appears prima facie to be more in accord with the approach of law and behavioural studies, especially their economic component. A central difference between an autonomy-based and a welfare-based position is that, in a welfare approach, autonomy has intrinsic value only so far as it is preferred by individuals.

At the same time, it has instrumental value because it enables individuals to pursue welfare enhancing ends. Externalities are problematic because they misalign individual and social welfare. In the case of negative externalities, agents ignore part of the cost of their actions because they are borne by others. Conversely, in the case of positive externalities, agents fail to take certain take welfare-increasing actions because they cannot capture all the benefits.

The question is in fact to what extent individual preferences count as a reason to claim that something is welfare enhancing. If preferences are likely to be considered welfare enhancing, then the framework is quite narrow because arguments that are not preference-based are very unlikely to be persuasive. Once one takes the view that individual preferences are not necessarily welfare enhancing, it becomes central to find new criteria for the determination of what is welfare enhancing.

In the welfare framework, this point is far from a consensus. In particular, agents with other-regarding preferences might consider externalities anyway, which might ease the policy relevance of an externality problem. Nevertheless, the next subsection suggests it is perhaps more important to focus on the distinction between broader and stricter theories of value, regardless of them being autonomy- or welfare-based.

This subsection argues that it is advisable to focus primarily on what makes a choice good, worthy, valuable rather than on whether the correct framework for the analysis is autonomy- or welfare-based. The claim is supported with two examples showing the similarity in the use of the concept of preference by authors thinking in autonomy- and welfare-based frameworks.

First, in both frameworks there is a recurrent mistake, which is a heritage of the strong trust in individual agency typical of the stricter version of the theories. Second, it is shown how the proposals of respecting the management of mental bandwidth by Alemanno and Sibony autonomy-based and of increasing navigability by Sunstein welfare-based ultimately share a similar and quite high level of trust in individual preferences.

These expressions are misleading because they ultimately mean that our true and real preferences are not necessarily our mental states, which is counter-intuitive, at best. Thus, even if my choice was nudged by N, I preferred X. In other terms, preferences stop being mental states and become normative constructs built with a counter-factual. It is arguably correct to say that this is another example of the fallacy of misplaced concreteness.

On this fallacy see, in this volume, Frerichs n 5. On the one hand, Alemanno and Sibony want the respect of the decisions made by an agent regarding the degree of attention she wants to allocate to a certain problem. On the other hand, Sunstein wants respect for the decision made by an agent regarding the outcome she wants to realize.

While the type of preference the two proposals focus on is different — with the autonomy-based proposal being about a second-order preference and the welfare-based proposal a first-order one — it is clear that both presuppose a strong degree of reliability, confidence, trust in the choices made by the agent. Thus, to a great extent, they are open to critiques similarly grounded in a challenge to the reliability, confidence, trust in the choices made by the agent. So far, in this section, we have seen that the distinction between autonomy-based and welfare-based framework hides differences and similarity that are better grasped by looking at the role of individual preferences in the analysis.

On these grounds, the next subsection offers some insights on the degree of reliability, confidence, trust in individual preferences in EU law. Behavioural insights then are extremely challenging for both, since they downgrade the axiological importance of preferences. The question then becomes how to go beyond 54 Alemanno and Sibony n 47 , Here, no consensus has been reached. Lawyers can look at the legal discourse and see which insights can be found there and brought to the broader debate.

This proposal is incredibly simple but surprisingly rich for interdisciplinary legal research. From this perspective, EU law allows formulating at least two lines of argument in favour of broadening the notions of autonomy from independence to self-authorship and offers insights on how to go beyond individual preferences. The first argument is that the narrow versions of both frameworks are in tension even with the information paradigm.

The reason for mandating disclosure is not only that sellers take advantage of the asymmetry of information, thereby reducing the independence and degree of preference satisfaction of the consumer. More generally, the reason is that the uninformed choice can be detrimental for the agent. In this regard, the language of the Treaty on the Functioning of the European Union TFEU importantly suggests that, on crucial issues such as health and safety, but also economic matters, the actual preferences of consumers are not that important.

This provision crucially grounds consumer protection in the interest of consumers and in a high level of protection, not in their preferences. The limited role of preferences in the axiological foundations of EU consumer law is confirmed by the liability for defective products established by the Product Liability Directive.

The idea of expectations not only refers to the mental states of the consumers about how a product should be, but it also resonates with the economic concept of expected utility. However, the understanding of the concept of defect in the directive shows the limited role of consumer preferences in the identification of defective products. While what consumers expect can play a role, this role is neither conclusive nor necessary. See also the report of national cases in van Dam n 61 , And this is the case because actual consumer preferences are not a central concept in this area of law.

From an interdisciplinary point of view, and given the current controversy in economics on how to go beyond actual preferences, there is ample room for proposals justified by their fit with current legal practice, by their compatibility with the vision of consumer choice reflected in the law. An overview of the behavioural toolkit This section moves the discussion to the prescriptive level, the level of the means to achieve given ends. Indeed, from a legal point of view, the discussion in the previous two sections can be understood as largely preliminary and instrumental to the analysis at the prescriptive level.

More in detail, this section offers an overview of how behavioural insights relate to the main tools available in the EU system of consumer protection. The next section continues this inquiry by putting into the discussion of how to incorporate behavioural insights in legal discourse. This section first offers some advice to the legal scholar interested in the role of behavioural insights in enriching the tools available for policy recommendation subsection 4.

Then it proceeds to discuss the relationship between behavioural insights and the main instruments used by EU consumer law, namely information disclosure and more intrusive forms of regulation under the heading of attributes control subsection 4. Before that, subsection 4. At first glance, one may think that, in the field of consumer protection, the role of default contract terms is trivialized by the diffusion of standard terms that overrule any default rule.

This is possibly true, but it does not mean that defaults do not play a role at all. Actually, the prima facie limited role of defaults in contract law allows illustrating very clearly the point made above about the possibilities opened by behavioural insights to consumer legal research. There are, in fact, at least two cases where in the European system of consumer protection opt-in defaults are, or have been, part of the discussion: class actions and the CESL. Behavioural insights suggest that opt-out defaults would make legal instruments more effective. Thus, the choice of an opt-in system was likely to make the CESL an optional regime largely ineffective.

A perceived major problem of consumer protection enforcement is that mainly educated, well-to-do consumers exercise their consumer rights, ultimately leading to redistributive effects from the poor to the wealthy. The opt-out default rule would thus arguably make class actions more effective not only in general but particularly for those consumers that are unlikely to start an individual lawsuit. Note that the legislative initiatives that have taken the place of what would have been the CESL regulation are directives of full harmonization, which means that defaults are not relevant anymore; see, Proposal for a Directive of The European Parliament and of The Council on certain aspects concerning contracts for the supply of digital content, COM final and Proposal for a Directive of The European Parliament and of The Council on certain aspects concerning contracts for the online and other distance sales of goods, COM final.

BIICL They should be taken as illustrative of how legal scholars can give free rein to their ingenuity in reflecting on how defaults and other nudges can be used to foster the consumer interest. The following subsection provides further illustrations about the right to withdraw.

They both agree that information asymmetry and private nudges jointly justify a concern for these types of contracts. Smits, instead, criticizes mandatory rights to withdraw for their detrimental effects on the trust-building process generated by a contractual right to withdraw.

Such an asymmetry is lower than in distance contracts, but it adds to the social pressure that the doorstep seller can exercise on the consumer. The sale strategy reconstructed by the author starts in the pre-contractual phase, where the consumer undertakes several face-to-face commitments with the seller that make the withdrawal unlikely due to the status quo bias. The analysis offered by Luzak is more descriptive. The described strategy is very close to the partitioning strategy described by Willem H. Luzak considers different legal regimes that could theoretically be used for regulating distance contracts and reviews the economic and behavioural arguments in favour and against the right to withdraw.

In particular, the author points out that prolonging the cooling-off period might make the exercise of the right less likely due to procrastination. Ultimately, Luzak calls for more empirical research. In other terms, at the end of the cooling-off period, the contract will terminate unless the consumer confirms it. From a behavioural perspective, the argument rests on the stickiness of defaults.

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In the current regime, to terminate the contract, the consumer must exercise the right to withdraw before the deadline. According to the proposal of the authors, the contract would automatically terminate unless the consumer expresses the will to maintain the contract into existence. While, for the delivery of goods, this proposal might generate non-trivial inconveniences and costs related to the shipping of the good, in case of services and of offers in the context of long-term contracts especially in the case of add-on services , this mechanism could be worthy of further consideration.

This novel and interesting proposal illustrates well that one can be smart in designing behaviourally-informed regulation. We observed longer dwell time, longer average fixation and more fixations on the AOIs in the easy groups of objects than in the difficult ones. However there were less revisits to AOIs in the easy group of objects than in difficult one. This results prove the hypothesis according to which easy objects were con- fronted with the content of a given rule, hence the longer dwell time and longer time of fixations.

The AOIs generally match the conditions of a given rule, hence it could be observed that according to the expectation, inspections involved the application of the rule-based strategy. However the higher number of revisits and longer time of dwell outside AOI white space proves that the subjects probably retrieved information stored in the long term memory and based their categorisation strategy on some heuristic processes rather than on the inspection of legal conditions.

As opposed to the objects belonging to the group I, the inconclusive objects encapsulated in group II had been intentionally selected in such a way, so that they generated a conflict between a rule-based category and the exemplary category. Thus the object became queer, eccentric, strange or peculiar rather than typical. As an effect, the tasks in group II required a more creative and engaged attitude, since the participants had to choose between the rule following and the exemplar following strategy.

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Just to demonstrate this observation briefly one may refer to the garden house. The garden house pos- sessed all the relevant characteristics of the building according to the legal text of the definition. The electric transformer constitutes another noteworthy example of the potentially fuzzy or puzzling object. Appearing as a solid cement based house of bricks this object at a closer look turned out to be a part of the electric power network infrastructure and as such it should be classified rather as a construction than a building, nevertheless in accordance with the legal rule constituting the rule- based category that object should be categories as building indeed.

Inserting the pictures inconclusive objects to the collection of having been dis- played photos allowed a kind of manipulation and differentiation between the two categorization strategies. The presence of those objects enabled us to address the question concerning the existence of the exemplary based categories and the inter- ference between the rule based and exemplary based ones. The issue seems to be of high relevance for both practicing lawyers and legal theoreticians. It tackles the problem of the sense of normativity and the sense-making function of rules within the context of the pragmatics of the law-making process.

Are they able to serve as the guidance for human agents? These are still one of the most pressing questions in the contempo- rary jurisprudence. The results of our investigations do also lead to more practical 36 On rules vs. Smith and Sloman and Smith and Medin Kahneman and Miller To what extend law may abstract from the hard-wired exemplary based categories, especially given the fact that cognitive psychology finds the exemplary based categorization as the most fundamental, natural and intuitive, needless to say the primary one and evolutionary former to the other categorization strategies Moreover, is it possible to effectively shape human decision-making process by virtue of the much more complex and less cognizable, artificial rule-based catego- ries, given the fact that those categories are very often just conventional human- made normative benchmarks as opposed to the exemplar categories deeply grounded in human cognitive experience.

Secondly, the rule-based strategy may be effectively applied to the decision making process in a legal context. This finding has been reflected by the relatively longer duration time for task performance, where the object was to be classified in accordance with an explicitly stated and relatively clear rule which was however incoherent, incongru- ent or even contradictory with the overlapping exemplary based category.

Despite the fact that the object possessed some characteristics of the building Fn , the par- ticipants were inclined to identify it as construction rather than building. The only possible category which remained after this negative match was just that of construction, because the small architectonic object was out of question due to the sheer size of the object which was relatively big.

Additionally we have recorded another 22 transitions between the trunk of the object and the AOI containing the legal defini- tion of construction, whereas no transitions between cables and the legal definition 38 Osherson and Smith II of building have been recorded. From the number and the location of transitions we can interfere that the participants identified the function of the object simply linking the visual data concerning the electric transformer and the connections of the elec- tric cables and finally identified the function of the whole object relying on the pres- ence of the considerable number of electric wires connected to the building.

Thus the decision on the function of the object was prior to the decision on categorization and seemed to determine its content. Concurringly the electric transformer did not appear as a typical building, alluring the participants to select an improper category of construction rather than the proper one, namely the building.

The decisions on categorization turned out not to be based on the rule which fol- lowed the legal definition. The fact that the object was not a typical building did not mean that it does not belong to the category, because the object complies with all the relevant conditions of being a building rather than a construction; it was perma- nently attached to the ground, based on solid foundations and possessed permanent brick made walls together with the roof.

It seems therefore that this difficult case revealed the sensitivity of the rule-based categorization and the respective influence of the exemplary based categorization strategy upon it. The uncanny function of the transformer seemed to effectively supersede the content of legal definition, leading to the situation where the rule based categorization strategy was eventually ineffec- tive, and the categorization decision departed from the content of the legal defini- tion of the building Def.

The qualitative analysis of this task leads to the conclusion that in case of the serious incongruence between the content of two conflicting categories, their coexistence apparently leads to the m. This kind of competition consists in an attempt to switch the mind of the decision maker from the exemplary based categorization strategy to the rule-based one.

In our experiment only 2 participants out of 15 were able to correctly classify the house in garden as building. Eleven subjects classified the object as a small architectural object, supposedly doing this in accordance with the exemplary-based categorization strategy. This output of the categorization pro- cess seems to be suitable to the common sense knowledge the array of the images of the objects stored in LTM. Moreover, three subjects having classified the garden house as a structure followed the exemplary-based category as well, instead of fol- lowing the explicit rule derived from the legal definition the object having been classified as too different from the image of building.

Even in the first task garden house — object 1 gr. II the number of inspections to the definition of building is significant. The highest number of transitions has been observed as for the transitions between the picture of the garden house and the legal definition of the building Def. Later on the cognitive process of participants focused on the correspon- dence between the picture of the garden house and the definition of the structure Def. The fewer number of repeated information inspections has been recorded in case of transitions between the picture of the object and the definition of single-family residential building Def.

Correspondingly it could be observed that the rule-based categories encoded within a legal text were still within a process of crystallizing in participants minds at this stage of the experiment. The most intensive cognitive effort has been taken as to compare the specific features of the object with the legal definition of building Def. The readers clearly understood the definition and were able to decode the category constituting rule.

This observation proves that the activation of the cognitive process reflected the model of the rule-based categorization cf. However, the vast major- ity of answers were incorrect. We believe that this unexpected result may be inter- preted as the unsuccessful attempt to follow the rule-based category. The rule-based categorization appeared to be less effective.

Moreover, the application of the less time consuming and more natural intuitive exemplary based categorization seems to be more efficient, since this categorization strategy on the one hand activates the long term memory LTM , but on the other hand it seems to be less engaging for the working memory WM , as compared to the rule-based strategy. The later one is based on the comparison between the object and the rule-shaped pattern.

This pat- tern, as opposed to the exemplary-based categorization strategy, is not being retrieved from the LTM. It is rather being constructed or reconstructed, as the rule is being derived from the legal text, and this operation seems to be seriously m. The main questions are: 1. Why participants made so many mistakes while classifying difficult objects despite the presence of definitions which should indicate the proper answer?

What were the differences like between the easy and difficult objects?

Those differences essentially confused the participants. The eye-tracing data suggest some explanations to these problems. That way of analyse of difficult objects suggest that, apart from the rule-based categorization, another processes were involved in the decision making process. If rule-based categorisation was sufficient, potential mistakes should be committed as a result of wrong conclusion based on the proper information.

We conducted an empirical research on how objects categorize buildings for the purpose of tax regulation, concentrating on the process of catego- rization in legal context. It seems obvious that some decisions are not well informed and lead to potential severe consequences. Hence the question to what extent and how tax regulation could potentially be improved, taking the insights of cognitive psychology into account. The limits of cognitive capacities in our experiment are limited to the heuristics of representativeness and anchoring processes.

Additionally however, the decisions on categorization interestingly reflect the interplay between conscious and unconscious processes, since different categorization strategies seem to coexist and interfere, leading to the sub optimal result and systemic errors. Hence the question remains how and to what extent it is possible to improve legal defini- tions of different objects in the real context of tax law. The definitions contained some conditions for building rule-based categories. The presence of negative answers negative matches indicated the inefficacy whereas the number of positive matches indicated the operational efficacy of the rule-based categorization.

The results of the experiment prove the existence of significant differences between the cognitive processes engaged into two types of categorizing in respect of the two types of the categorized objects: conclusive gr. I and inconclusive gr. The participants were not aware during experiment which object belongs to which type: easy or hard one. In our experiment we induced this second variant vagueness by showing on the screen of eye-tracker object inconclusive for legal authorities hence even more obscure for students.

That suggests that there are two cognitive mechanism of categorization and, furthermore, vagueness of legal definition is a trigger for non-rule-based categorization. Firstly, if mechanism of turning off rule-based categorization is swiftly, it should be taken into account for evaluation of effectiveness of legal construction provisions and norms. Thus one may present the relation between the two as in a rule-exception mode. Concurringly only the result of the process positive or negative match , but also its dynamic has been captured. If mechanism of turning off rule-based categorization is taken into account, the drafting process should be concentrated on production of simple and commonly understood definitions applied in the context of tax law or it should at least take the other possible categorization strategies into account.

The first strategy is based on the assumption on the effective application of simple rules even in com- plex cases. The other one refers to mild form of cognitive manipulation where the lawmaker consciously applies at least partly unconscious processes indirectly 39 This observation does not refer to Dworkin , , where rules are undetermined and the case the hard case has to be solved by virtue of weighting principles. We use the concept of typi- cal case easy case vs. The later strategy is thus inevitably related with the potential advantages and disadvantages of nudging as a kind of paternalistic attitude to legal subjects.

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