26 Pages Posted: 8 Oct 2015 Last revised: 15 Apr 2016

Date Written: October 7, 2015

Abstract

This essay is both a review of the excellent book “Nudge and the Law. A European Perspective”, edited by Alberto Alemanno and Anne-Lise Sibony, and an assessment of the major themes and challenges that the behavioural analysis of law will and should face in the immediate future.

The book makes important and novel contributions in a range of topics, both on a theoretical and a substantial level. Regarding theoretical issues, four themes stand out: First, it highlights the differences between the EU and the US nudging environments. Second, it questions the reliance on expertise in rulemaking. Third, it unveils behavioural trade-offs that have too long gone unnoticed in behavioural law and economics. And fourth, it discusses the requirement of the transparency of nudges and the related concept of autonomy. Furthermore, the different authors discuss the impact of behavioural regulation on a number of substantial fields of law: health and lifestyle regulation, privacy law, and the disclosure paradigm in private law.

This paper aims to take some of the book’s insights one step further in order to point at crucial challenges – and opportunities – for the future of the behavioural analysis of law. In the last years, the movement has gained tremendously in breadth and depth. It is now time to make it scientifically even more rigorous, e.g. by openly embracing empirical uncertainty and by moving beyond the neo-classical/behavioural dichotomy. Simultaneously, the field ought to discursively readjust its normative compass. Finally and perhaps most strikingly, however, the power of big data holds the promise of taking behavioural interventions to an entirely new level. If these challenges can be overcome, this paper argues, the intersection between law and behavioural sciences will remain one of the most fruitful approaches to legal analysis in Europe and beyond.