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AbstractProfessor Sunstein (2017) discusses the possible causes for and policy implications of the failure of nudges, with special attention to defaults. Though he focuses on nudges that fail when they should succeed, Sunstein recognizes that some failures reveal that a nudge should not have been attempted to begin with. 'Nudges that fail', however, does not consider fully the relationship between the outcomes of nudging and their likely welfare effects, most notably neglecting the troubling case of nudges that succeed when they should fail. Hence, after clarifying the boundaries of legitimate nudging within a libertarian-paternalistic approach and noting the fourfold relationship between the efficacy of nudging and its normative desirability, this article evaluates more fully the case of failed nudges and examines the hitherto unaddressed problem of successful yet undesirable nudges. This analysis shows that the failure of nudging bears only limited diagnostic value, while the success of a nudge is even less indicative of its normative status. The article concludes with recommendations for policy-makers who wish to employ nudges that are not only efficacious, but also likely to advance the subjective well-being of the individuals they target.

This article examines entrepreneurial activity and its implication for policy and antitrust law from a behavioral perspective. In particular, the analysis here focuses on the role of two sets of behavioral phenomena—overconfident beliefs and risk-seeking preferences—in facilitating boundedly rational entrepreneurship. Boundedly rational entrepreneurs may engage in entrepreneurial activity, such as the starting of new business ventures, under circumstances in which rational entrepreneurs would decline to do so. Consequently, overconfident or risk-seeking entrants compete with their more rational counterparts and create a post-entry landscape that differs markedly from the picture assumed by traditional economic accounts of entrepreneurial activity. The behaviorally informed analysis of entry sheds new light on the dynamics of competition among entrepreneurs and on its implications for policy and antitrust law.

This book pursues the questions from a broad range of law and economics perspectives. Digital transformation leads to economic and social change, bringing with it both opportunities and risks. This raises questions of the extent to which existent legal frameworks are still sufficient and whether there is a need for new or additional regulation in the affected areas: new demands are made on the law and jurisprudence.

Intro -- Preface -- Contents -- Part I: Immediate Impact and Responses -- Law, Economics, and Compliance in the Times of COVID-19: A Behavioural Perspective -- 1 Introduction -- 2 Choosing the Means to Promote the Goal: Nudges v. Mandates -- 3 Nudges: Behaviourally Informed Messaging, and Choice Architecture -- 3.1 Behaviourally Informed Messaging -- 3.2 Choice Architecture -- 4 Harnessing Social Norms -- 5 Behavioural Ethics: Addressing Motivated Reasoning and Partisanship -- 6 Conclusion -- References -- Fake News in Times of Pandemic and Beyond: Enquiry into the Rationales for Regulating Information Platforms -- 1 Introduction: The Changing Landscape of Fake News -- 2 Regulating Online Platforms -- 2.1 Understanding Platforms as Information Intermediaries -- 2.2 Regulatory Initiatives Addressing the Platformization of the Media Space and Online Misinformation -- 2.2.1 Introduction -- 2.2.2 Developments in the United States -- 2.2.3 Developments in the European Union -- Remarks on the General Framework for the Protection of Freedom of Expression -- Specific Initiatives Regulating Platforms -- 3 Appraisal of the Emergent Regulatory Framework for Platforms -- References -- A Behavioural Economics Approach to the Covidian Crisis -- 1 Introduction -- 2 Why Can We Not Learn from History? -- 3 Response to the Pandemic by Governments and Citizens -- 4 Behavioural Economics as a Public Health Support -- 5 Final Thoughts -- References -- Contracts and the Coronavirus Crisis: Emergency Policy Responses Between Preservation and Disruption -- 1 Introduction -- 2 Emergency Policy Responses -- 2.1 Responses for Commercial Contracts -- 2.2 Responses for Consumer Contracts -- 2.3 Responses for Employment Contracts -- 2.4 Responses for Lease Contracts -- 3 Preservation, but Excuses and Remedies -- 3.1 Subsequent Impossibility of Performance.

Part I: Law and Economics of Regulation Theory -- Public Services as a Strategy of Regulation -- Sectoral Self-Regulation as a Viable Tool -- Ethical Blind Spots & Regulatory Traps: On Distorted Regulatory Incentives, Behavioural Ethics & Legal Design -- Law and Economics as a Vehicle for Judicial Activism in Russian Law -- Part II: Specific Applications of Law and Economics of Regulation -- Key Lessons for the Design of Consumer Protection Legislation -- Regulation of Information about Unfolding Events in Securities Markets: A Behavioural Economics Perspective -- Data Flows v. Data Protection: Mapping the Pros and Cons of Existing Reconciliation Models in Global Trade Law and Beyond -- The Concept of Regulatory Arbitrage -- (Un)intended Consequences of Macroprudential Regulation -- Precautionary Antitrust: A Precautionary Tale in European Competition Policy -- Regulation and Deregulation of Financial Markets from the Perspective of Law and Economics -- Privatizing Income Security for Disabled Workers: Unintended Consequences and Labour Market Imbalances -- Regulating Innovations -- Matching Commitments: A New Approach to Regulation of the Commons.

Intro -- Foreword -- Preface -- Contents -- Contributors -- Introduction -- Part I: Foundations -- Chapter 1: The Critical and Problematic Role of Bounded Rationality in Nudging -- 1.1 Introduction -- 1.2 The Tools and Goals That Define Nudging -- 1.3 Non-nudge Tools and Extra-nudge Goals -- 1.4 Conclusion -- Bibliography -- Chapter 2: Beneficial and Exploitative Nudges -- 2.1 Nudging as a Concept -- 2.2 Critiques of the Nudging Concept -- 2.3 Nudges from a Political Economy Perspective -- 2.4 An Application of Nudging: Awards -- 2.5 Making Nudges Beneficial -- Bibliography -- Chapter 3: The Crucial Importance of Interests in Libertarian Paternalism -- 3.1 Introduction -- 3.2 Problems with Nudges -- 3.3 Interests -- 3.4 Interests and Paternalism -- 3.4.1 Means Paternalism and Ends Paternalism -- 3.4.2 Perfectionist or Objective Theories of Well-Being -- 3.5 Conclusion -- Bibliography -- Chapter 4: Condorcet's Jury Theorem as a Rational Justification of Soft Paternalistic Consumer Policies -- 4.1 Introduction -- 4.2 Libertarian Paternalism and the Knowledge Problem -- 4.3 The Condorcet Jury as a Wise Social Planner -- 4.4 The Optimal Jury Size and Educative Nudges -- 4.5 Rebutting Some Critique: Thinking in Hierarchical Preference Structures -- 4.6 Concluding Remarks -- Bibliography -- Chapter 5: To What Extent Should the State Protect Human Beings from Themselves? -- 5.1 Introduction -- 5.2 The Realization of Human Rights -- 5.3 Human Rights Protecting the Individual as Part of a Community -- 5.4 Autonomy: The Nucleus of Human Rights -- 5.5 Conclusion -- Bibliography -- Chapter 6: Nudging Is Judging: The Inevitability of Value Judgments -- 6.1 Introduction -- 6.2 The Fact/Value Dichotomy -- 6.2.1 From Empiricism and Hume's Law to Logical Positivism -- 6.2.2 The Collapse of the Analytic/Synthetic Dichotomy Following W. V. O. Quine.