Data and arguments: empirical research in consumer law

Abstract

This chapter examines the roles of empirical research in consumer law. It does so form a contemporary perspective, taking into account the increased recourse to empirical data both in legal scholarship and in policy-making in conjunction with the behavioural turn. It addresses primarily legal researchers educated in a doctrinal tradition who take an interest in consumer law and are considering adding an empirical dimension to their work or want to incorporate empirical work among the sources they use. In this perspective, part 1 offers a typology of legal questions and discusses how each relates to empirical issues. A distinction is drawn between internal legal questions (questions about how rules relate to one another) and external legal questions (questions about law and the world). It is shown that, while external legal questions about effectiveness and efficiency of rules present a natural affinity with empirics, internal legal questions can also have an empirical component. Taking examples in consumer law, the chapter illustrates that empirical issues lie in the midst of questions about the validity, proportionality or interpretation of rules. Part 1 also highlights the particular interest of one type of external legal question for empirical research, besides issues of effectiveness and efficiency, namely reality-check questions, which confront implicit behavioural claims embedded in the law with what is known of consumer behaviour (or indeed firms’ behaviour). Part 2 reviews an illustrative selection of recent empirical work, which, strikingly, all pertain to external legal questions. It characterises the use of data in legal argument as rhetorical and illustrates this claim with two series of examples. Legal discourse based on data with express a critique of existing legal regimes provide the most striking illustrations. The rhetorical intensity recedes in reflexion about policy inception and fine-tuning of policy-interventions. Yet, all the examples show that lawyers only ever use data to make arguments. Turning to enforcement of consumer law, a recent trend in the literature advocates more data-intensive enforcement methods. Such proposals, along with substantive and procedural questions raised by algorithmic powered commercial practices provide rich perspectives for further research outlined in part 3.