Research Methods in Consumer Law

Our readers may be interested in the recently published book: 'Research Methods in Consumer Law', edited by H-W. Micklitz, A-L. Sibony and F. Esposito. This book aims to critically explore the impacts of different disciplines and methods in consumer law research, with a special emphasis placed on behavioural studies. It consists of three parts: 'Foundations of Behavioural Consumer Legal Research', 'Advances in Behavioural Consumer Legal Research' (with a chapter written by the author of this blog: 'Who Calls the Tune? Stock Taking of Behavioural Consumer Protection in Europe'), 'Insights from Broader Perspectives'. 

There is currently a promotion on Elgar website on the hardback copy (see previous link), but it will also be available soon as an e-book on Elgaronline (where you can also opt to purchase individual chapters).

Consumer Law and Consumer Behaviour book

Our readers may be interested in the publication of the book "Verbraucherrecht und Verbraucherverhalten" ("Consumer Law and Consumer Behaviour"), edited by B. Heiderhoff and R. Schulze, which contains contributions of two authors of this blog: Franziska Weber (in German) and Joasia Luzak (in English). 

The table of contents, which unfortunately is not given at the website of the publisher (but you may order this book through this link), is as follows:

Teil I. Grundlagen

B. Heiderhoff/R. Schulze - Verbraucherrecht und Verbraucherverhalten - Einführung

P. Mogelvang-Hansen - Consumer law and consumer behaviour. Some illustrations

R. Caterina - Beyond Error: Psychology's (Not-So-Easy) Lesson for Consumer Law

Teil II. Materielles Recht

G. Howells - Consumer Credit and Behavioural Economics

P. Tereszkiewicz - Fremdwährungskredite als Frage des Verbraucherschutzes: eine Zwischenbilanz

E. Grasso/ C. Poncibó - Nutrition Labelling Chaos. How far shall we go in nudging consumers?

Teil III. Rechtsdurchsetzung

F. Gómez/ K. Lyczkowska - Preliminary References on Consumer Law from Spanish Courts: A Law and Economics Perspective

F. Weber - Ökonomische Analyse verschiedener Rechtsdurchsetzungsmechanismen im Verbraucherrecht

Ch. Twigg-Flesner - Does the codification of consumer law improve the ability of consumers to enforce their rights? - A UK-perspective

J. Luzak - Empirical evidence in consumer law cases: what are 'up to' claims up to?

Even more than you wanted to know

New additions have been added to the virtual symposium on Ben-Shahar's and Schneider's book on mandatory disclosure. They include contributions by:

VII. Nancy Kim

VIII. Florencia Marotta-Wurgler

IX. Daniel Schwarcz

X. Jeff Sovern

XI.A David Vladeck

More than you wanted to know - a virtual symposium

On ContractsProf Blog, a virtual symposium is currently taking place on the book 'More than you wanted to know' by Omri Ben-Shahar and Carl E. Schneider. 

The book, of which we posted a summary earlier, addresses the problem of lacking effectiveness and potential harmfulness of mandatory disclosure rules in consumer contract law. 

Contributions to the virtual debate so far include an introduction of the authors and blog posts by:

I. Aditi Bagchi

II. Steven Burton

III. Ryan Calo

IV. Robert Hillman

V. Ethan Leib

VI. Lauren Willis

More than you wanted to know

In addition to the previous note: as the Consumer Rights Directive, like most EU consumer law, continues to rely on information duties for sellers ('an informed consumer will make the right choice'), it might be wise to keep in mind the limited effectiveness of disclosure rules. Omri Ben-Shahar (Chicago Law School) and Carl Schneider (University of Michigan) just published an interesting book on the topic. Its summary reads:

'Perhaps no kind of regulation is more common or less useful than mandated disclosure - requiring one party to a transaction to give the other information. It is the iTunes terms you assent to, the doctor's consent form you sign, the pile of papers you get with your mortgage. Reading the terms, the form, and the papers is supposed to equip you to choose your purchase, your treatment, and your loan well. More Than You Wanted to Know surveys the evidence and finds that mandated disclosure rarely works. But how could it? Who reads these disclosures? Who understands them? Who uses them to make better choices?

Omri Ben-Shahar and Carl Schneider put the regulatory problem in human terms. Most people find disclosures complex, obscure, and dull. Most people make choices by stripping information away, not layering it on. Most people find they can safely ignore most disclosures and that they lack the literacy to analyze them anyway. And so many disclosures are mandated that nobody could heed them all. Nor can all this be changed by simpler forms in plainer English, since complex things cannot be made simple by better writing. Furthermore, disclosure is a lawmakers' panacea, so they keep issuing new mandates and expanding old ones, often instead of taking on the hard work of writing regulations with bite.

Timely and provocative, More Than You Wanted to Know takes on the form of regulation we encounter daily and asks why we must encounter it at all.'

See also the publisher's website.

On books and e-books - AG Jääskinen's opinion in Case C-117/13 Technische Universität Darmstadt

To what extent are public libraries free to offer digitised versions of their books to their users? In his Opinion in case C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG, Advocate General Jääskinen provides the CJEU with some suggestions as to how to answer this question in light of EU law.

The case concerns a dilemma that is of interest to many public libraries, in particular those attached to universities, such as in casu the library of the Technical University of Darmstadt (Germany): how to make accessible to a large public its resources, both on paper and in digital format. As many publishers nowadays offer their products both as printed books and as 'e-books', a library's choice in individual cases can be between a) buying a physical copy of a book and possibly digitising is, b) acquiring access to the digital version (e-book) of the work, and c) a combination of both. If a library already has a physical copy of a book in its collection, it will usually prefer the first option over the other two, for rather obvious economic reasons. 

In the present case, the university library in Darmstadt had digitised a textbook on contemporary history ('Einführung in die neuere Geschichte') published by Eugen Ulmer KG. The publishing house seeks to prevent the library from this type of digitisation of the book and from making available the digital copy to library users via electronic reading points. Earlier, it offered the library the possibility to buy e-books of the textbook concerned, but the library did not make use of this offer.

AG Jääskinen considers that, as long as no licensing contract on the use of e-books has been concluded, the Copyright Directive does not prevent Member States from allowing a library to digitise books that are part of its collection. Neither does EU law stand in the way of having libraries make available digitised books through dedicated terminals. This particularly regards copyrighted works that are either old, fragile or rare, or that might suffer disproportionate wear because of a large number of students photocopying them.

However, according to the AG, the relevant provisions of EU law do not provide space to allow a library to digitise its entire collection, but regard individual works. Moreover, users of dedicated terminals should not be given the possibility to save digitised books on a USB device; they may print a paper copy. 

The AG's Opinion is not yet available in English. A summary can, however, be found in the CJEU's press release regarding the case.

United in diversity

Different views on the Common European Sales Law, which will be the subject of European parliamentary debate and a vote this week, may be related to ideas about to what extent a common culture underlies legal harmonisation projects in the EU. A collection of essays on this topic, edited by Kai Purnhagen and Geneviève Helleringer and based on a conference they organised in December 2011 (on which we posted earlier, 'For no man is an island'), has just been published. It takes the following perspective:

'European harmonisation efforts such as a European civil code, European constitutional treaties, European principles, and European fundamental rights are frequently criticised for building on or creating a European legal culture that does not exist; in reality what we have is European legal pluralism. Some have argued that the pluralistic structure of European law hinders the development of a community, which is a necessary requirement for a European legal culture. And if there can be no common European legal culture then there is no basis for harmonising exercises. 

The contributors to this book explore in different legal areas whether in fact the contrary is true. Cultural pluralism might indeed be a distinctive feature of European legal culture. Diversity is not something that is in opposition to, but rather constitutes a new, different understanding of European legal culture. The contributions demonstrate in detail how such an approach inter alia in the areas of private, corporate, administrative and constitutional law furthers understanding of a developing European legal culture, how it offers theoretical and doctrinal insights, and how it adds critical perspective.'

More information and a table of contents is available on the publisher's website.

Landmark cases

Studying case law is a great way to learn about European consumer law matters. A book that has recently been published in honour of Professor Jules Stuyck collects essays on a number of leading EU judgments in the field. The editors summarise the book's contents as follows:

'This unique book tells the story of the coming of age of EU consumer law, a legal domain that hasn’t ceased to expand in depth and scope during the last 20 years.

However, this book has not been conceived by the editors as an exercise in nostalgia. The contributions offer ample food for thought about the challenges awaiting consumer law in the years to come. The selected cases in this book are therefore without exception landmark decisions. What this volume doesn’t offer however, is an exhaustive overview of EU consumer law jurisprudence. It doesn’t aspire to be a textbook covering all aspects of consumer law. Rather, the authors have approached the cases – some of which have been commented upon quite extensively in legal doctrine already – from a novel and personal perspective, sometimes coloured by the contributor’s particular background, concerns and interest. Very often, the cases have been used as a point of departure to point out a development in EU and / or national consumer law.

The result of the contributors’ efforts does not only read as splendid anthology but it will be read and continued to be read by anyone interested in EU consumer law.'

Readers interested in Jules Stuyck's work might also wish to look up his editorial in the latest issue of consumer law journal euvr.

Capita Civilologie

Today at the Academiegebouw in Utrecht a promotion of the book "Capita Civilologie. Handboek empirie en privaatrecht" took place. 'Civilologie' is a new term describing research that is not limited to pure, traditional, dogmatic legal scholarship but includes insights from other disciplines. The book is worth mentioning here for many reasons, not the least since two of this blog's authors have written a chapter each for this book. If you read in Dutch you should look up Bram's chapter (Chapter 6) evaluating the 'average consumer' standard in misleading commercial practices and Joasia's chapter (Chapter 10) assessing the right of withdrawal in distance selling contracts. The book is published by Boom Juridische Uitgevers and edited by W.H. van Boom, I. Giesen and A.J. Verheij. For any of our readers interested in how insights from empirical studies could be included in legal scholarship, it is worth to look into these 1050 pages describing various forms and areas of such research. This book is a second edition of the previous book "Gedrag en Privaatrecht" with some new chapters and some updated chapters from the first edition and many of its parts describe various consumer behaviour and consumer law issues.

Summer reading

One final question on the holiday checklist could be what to read during the holidays. If you are looking for some recent literature in the field of European consumer and contract law you may be interested in a new working paper by Daniela Caruso on the EU's social justice agenda ('Qu'ils mangent des contrats: Rethinking justice in EU contract law'). The abstract reads as follows:

'The concern for justice in the context of EU contract law was central to a scholarly initiative that led, in 2004, to the publication of a Social Justice Manifesto. The Manifesto had the explicit goal of steering the Commission’s harmonization agenda away from purely neoliberal goals and towards a socially conscious law of private exchange. Contract law would be designed at the EU level so as to become (or remain, depending on the baseline of each member state) palatable to weaker parties. Today, in the many parts of Europe devastated by rising poverty, dire unemployment rates, and collapsing social safety nets, the Manifesto needs to be revised. When the very access to the market place is foreclosed by indigence and marginalization, the promise of contracts that would be sweet toward the vulnerable has the flavour of Marie Antoinette’s brioche. This essay revisits the situational premises of the Manifesto, acknowledges its accomplishments, identifies its limits, and outlines possibilities for its renewal, both within its original framework and beyond.'

And if you like to keep up with what inspires members of the European Parliament, their book choices can be found here (from this list, I would especially recommend Verhofstadt's suggestion).

Digital Consumers and the Law

A nice thing about the week before the holidays is that usually a lot of packages arrive. The one I just opened contained a new book on 'Digital Consumers and the Law', resulting from a joint project of the Amsterdam Institute for Information Law (IViR) and the Centre for the Study of European Contract Law (CSECL).

The book deals with the following topics: 

Chapter 1 Digital Content Markets for Consumers: Characteristics, Challenges, and Legal Context.

Chapter 2 Classifying Digital Content: Good, Service or Else?. 

Chapter 3 Somewhere between ‘B’ and ‘C’: The Legal Status of the ‘Prosumer’ in European Consumer Laws. 

Chapter 4 Pre-contractual Information Requirements for Digital Content.  

Chapter 5 Conformity and Non-conformity of Digital Content. 

Chapter 6 Educating the Regulator: A More Mature Approach Towards the Underage Consumer.

Chapter 7 Fundamental Rights and Digital Content Contracts.  

Chapter 8 Money Does Not Grow on Trees, It Grows on People: Towards a Model of Privacy as Virtue.  

Chapter 9 Conclusions.

Please refer to the publisher's website for more information.

Seduction by Contract

NYU Professor Oren Bar-Gill just published a book on the legal, economic and psychological aspects of consumer contracts. The introduction to the book, entitled 'Seduction by Contract', is available on SSRN and may be summarised as follows:

'Consumers routinely enter into contracts with providers of goods and services. These contracts are designed by sophisticated sellers to exploit the psychological biases of consumers. They provide short-term benefits, while imposing long-term costs – because consumers are myopic and optimistic. They are excessively complex – because complexity allows sellers to hide the true cost of the product or service from the imperfectly rational consumer. Using both general theory and detailed case studies, this book explains the costs – to consumers and society at large – imposed by seductive contracts, and outlines a promising legal policy solution: Disclosure mandates. Simple, aggregate disclosures can help consumers make better choice. Comprehensive disclosures can facilitate the work of intermediaries, enabling them to better advise consumers. Effective disclosure would expose the seductive nature of consumer contracts and, as a result, reduce sellers’ incentives to write inefficient contracts.'

The transcript of a recent interview with Professor Bar-Gill on the subject matter of this book can be found here.

Duty to warn clients in construction sector

Imagine you are building a house for your family. You've hired a builder and an architect. After months of work, you are about to move in when after a storm you discover your roof is leaking. Let's say the architect made a mistake and forgot to add an isolation layer in his plans for the roof. Should the builder have noticed it and warned you about it? Should he have warned the architect? Can you claim damages from the builder, the architect or both of them? If you want to know the answer to these and other questions, check out my PhD book - The service provider's duty to warn about defects caused by third parties - that has just been published.

Summer reading

While many legal institutions are taking a Summer break, news on legislative processes and case law is somewhat scarce. Those of you (back or still) at work looking for some reading materials related to consumer issues may therefore take the opportunity to read up on the pending proposal for a Common European Sales Law (CESL) or on the legal, political and economic aspects of the ongoing economic crisis in the EU.

Some relatively recent reading tips on the CESL include:

- Reich and Micklitz, 'The Commission Proposal for a "Regulation on a Common European Sales Law" - Too Broad or Not Broad Enough?'

- Eidenmüller and others, 'The Proposal for a Regulation on a Common European Sales Law. Deficits of the Most Recent Textual Layer of European Contract Law'

- Hesselink, 'The Case for a Common European Sales Law in an Age of Rising Nationalism'

Readers interested in economics and political science may want to consult Professor Eichengreen's reading list. Personally, I would add Sylvia Nasar's 'Grand Pursuit: A Story of Economic Genius', which beautifully recounts the development of economic theory from Dickens's times till today.

"The secret of my influence has always been that it remained secret." [S. Dali]

It's not a recently published book that I would like to mention here, but I have only recently finished reading it. "Influence: Science and Practice" by Robert B. Cialdini, professor of psychology and marketing at Arizona State University.

This book is a must-read for anyone who is interested in how the minds of consumers work. It shows clearly what factors influence consumers and their decision-making processes on a daily basis, most often subconsciously. It presents also mechanisms of defence that consumers might try using to protect themselves from this influence (as Dali mentioned, the power of influence is usually greatly diminished if it becomes known). From a legal perspective, if we find out what factors influence consumers we might figure out why certain legal mechanisms established to protect consumers are not effective in practice - when they ignore these powerful effects of 'click-whirr' mechanisms that often dominate consumers' way of thinking (certain stimuli causes automatic responses with consumers: "Click and the appropriate tape is activated; whirr and out rolls the standard sequence of behaviors"). On the other hand, it clearly shows that there are many ways of influencing the consumers and maybe the EU regulators should start using them in their own decision-making processes in order to deliver better protection mechanisms to EU consumers.