Papers by Fabrizio Esposito
Latin American Legal Studies, 2021
Discusiones, 2019
Esta introducción tiene dos objetivos. Primero, brinda una breve descripción de los principales... more Esta introducción tiene dos objetivos. Primero, brinda una breve descripción de los principales temas tratados por las diversas contribucio-nes. En segundo lugar, coloca las contribuciones en un contexto más amplio. Para este fin, se formulan algunas consideraciones sobre los orígenes de la investigación conductista y su relación con la economía en general y el análisis económico del derecho. Se presta especial atención al concepto de nudge. Luego, se ubica la descripción que Harel y Teichman hacen del análisis económico-conductista del derecho penal en el contexto de la literatura sobre el tema y se señala que Harel y Teichman tienen una descripción muy limitada del campo. La introducción concluye con un llamado metodológico a favor del “minimalismo interdisciplinario”, una metodología que ha sido probablemente determinante para el desarrollo de la economía conductista. El minimalis- mo interdisciplinario puede ayudar a que el análisis económico-conductista del...
This chapter challenges the use of total welfare as the axiological assumption adopted by economi... more This chapter challenges the use of total welfare as the axiological assumption adopted by economically-informed legal scholarship in the field of electricity. To do so, it demonstrates that the efficiency hypotheses can be grounded in two different economic rationales: the traditional one based on total welfare; and an alternative one based on consumer welfare. To challenge the uncritical endorsement of total welfare, the chapter chooses the competition pillar for the EU internal market for electricity as a case study and shows that consumer welfare better explains its economic rationale. This finding proves that the economically-informed legal scholars are wrong in considering total welfare an unquestionable starting point for their research. This will likely be a ‘shocking truth’ for law and economics scholars. The argument is articulated in four steps. The first step builds the methodological foundations. It describes two types of explanatory claims, one external and the other in...
SSRN Electronic Journal, 2017
European Review of Contract Law, 2014
European Competition Journal, 2014
Research Methods in Consumer Law, 2018
Journal of Consumer Policy, 2021
The recent book Consumer Theories of Harm is an important contribution to consumer policy. It is ... more The recent book Consumer Theories of Harm is an important contribution to consumer policy. It is the first attempt to develop theories of harm for consumer law. This essay presents the main arguments of the book (Sections 1 and 2). There are four archetypal scenarios of harm that consumer law should consider: the scam, the lemon, the shock, and the subsidy. Section 3 critically engages with the normative foundations of the analysis. Section 4 proposes to consider the shock scenario, one of the four archetypal scenarios of harm proposed by the book as the benchmark against which assess the other three scenarios. Section 5 shows the importance of searching the theories of harm latent in legislation by showing that ancillary terms in standard terms and conditions are understood by the Unfair Contract Terms Directive as an instance of the scam scenario, not of the shock scenario as proposed by the authors. Finally, Section 6 proposes additional lines of inquiry stimulated by Consumer Theories of Harm.
Global Jurist, 2019
This article strengthens Calabresi’s call for a bilateral relationship between law and economics ... more This article strengthens Calabresi’s call for a bilateral relationship between law and economics with two claims. The first claim is that the fitness analysis of Law and Economics (“concept-based fitness”) requires studying legal reasons and reasoning. This is a remarkable difference with the fitness analysis performed by the Economic Analysis of Law (“effect-based fitness”). Accordingly, Law and Economics and Economic Analysis of Law differ at the fitness stage already. The second claim is that Sunstein’s research on minimalism resonates well with Calabresi’s project although Sunstein has failed to acknowledge this in his book review. The article concludes with a discussion of how a minimalist approach contributes to a bilateral relationship between economics and law.
CeDIE Working Paper 2020/02, 2020
Price personalisation raises four policy concerns: building trust, fostering competitiveness, inc... more Price personalisation raises four policy concerns: building trust, fostering competitiveness, increasing access, and avoiding exploitation. The Modernisation Directive introduces an information requirement about personalised prices. The research explains how this information requirement can and shall be used to make price personalisation pro-competitive and pro-consumers. The analysis can be divided into two main parts. First, disclosing the impersonal price is the simple and effective way to reap the benefits of price personalisation while counteracting its negative effects. Second, the legal grounds for the right to know also the impersonal price in EU law are identified. After having explained that consumers have a right to be offered a personalised price, it is shown that the principles of transparency and effectiveness in EU consumer law, together with the right granted by Article 22(3) GDPR, imply that consumers have the right to know also the impersonal price. The right to know also the impersonal price is a critical tile for solving the puzzle represented by the best governance of digital markets in the European Union.
Anuario do NOVA Consumer Lab, 2020
Este artigo faz duas coisas. Em primeiro lugar, dar orientações sobre como se orientar na crescen... more Este artigo faz duas coisas. Em primeiro lugar, dar orientações sobre como se orientar na crescente literatura sobre direito e ciências comportamentais, especialmente no campo da pesquisa de consumo. Em segundo lugar, apresentar sugestões (talvez instigantes) para questões de investigação no domínio do direito do consumo e das ciências comportamentais. A primeira é indiscutivelmente instrutiva para a segunda. Bases sólidas são úteis para compreender para onde vai o debate e qual o contributo que podemos dar.
Homo Ludicus: Expected Strategies and Jurisprudence, 2020
Joint intentionality is a concept en vogue in general jurisprudence. Rich-ard Ekins has relied on... more Joint intentionality is a concept en vogue in general jurisprudence. Rich-ard Ekins has relied on joint intentionality to account for how legislatures can have intentions. At a more foundational level, Scott Shapiro has relied on shared intentions for explaining the normativity of legality. In this essay, we propose a metaphysically parsimonious approach called "expected-strategies approach", combined with a team-reasoning approach to legislation. Based on a game-theoretic perspective, this approach anchors normativity to our capacity of coordinating our actions, both at the level of the law-maker and at the level of the legal subjects. We show that for this coordinating function, an understanding of other players' expected strategies is sufficient. The expected-strategies approach portrays the rational agent as a homo ludicus, whose key social virtues are stability and predictability.
Before the behavioural turn, the economic account of consumer policy concerns was too optimistic ... more Before the behavioural turn, the economic account of consumer policy concerns was too optimistic and reductive. After the turn, we, the consumers, are more likely to need from an economic perspective a more intrusive consumer policy. This is the dismality thesis defended in this article. The dismality thesis is a theoretical, comparative, and argumentative thesis, albeit normatively incomplete. It follows from two premises. First, pre-behavioural economics elaborated a restricted theory of consumer harm in unregulated markets (“consumer harm premise”) and, second, it overstated the effectiveness of information disclosure as a means of consumer policy (“institutional premise”). The dismality thesis is further supported by a comparison of the discussion of attributes control in the pre- and post-behavioural turn literature and by commenting on the main source of controversy about attributes control in the post-turn literature, the so-called “artificial truncation” of behavioural analysis.
The article analyses the conceptual relation between Pareto efficiency (“at lease someone is bett... more The article analyses the conceptual relation between Pareto efficiency (“at lease someone is better-off and no one is worse-off”) and allocative efficiency (“consumer welfare is maximized”). In particular, it points out that voluntary exchanges are not always Pareto efficient for the contracting parties and that not all Pareto efficient exchanges are allocative efficient. The latter result highlights a tension in the conceptual foundations of mainstream law and economics: on the one hand, Pareto efficiency is generally considered an unsustainably strict normative criterion and Kaldor-Hicks efficiency is preferred; on the other, the allocative efficiency of markets is praised.
This is the review of the just published Nudge and the Law, edited by Alemanno and Sibony. First ... more This is the review of the just published Nudge and the Law, edited by Alemanno and Sibony. First published on Humana.Mente (free access, follow the link) and then republished on the European Journal of Risk and Regulation (2/2015).
With the Commission’s Decisions in Lundbeck, Johnson & Johnson and Servier, reverse payments in ... more With the Commission’s Decisions in Lundbeck, Johnson & Johnson and Servier, reverse payments in the pharmaceutical sector have recently come into EU Competition Policy’s focus. On the other side of the Atlantic, instead, the decennial jurisprudential debate seems to have arrived at a turning point after the US Supreme Court judgement in Actavis. The US practice shows that antitrust assessment of such agreements can be problematic, as they lie at the intersection point between Competition and Patent Policies. Whilst the Commission has dealt with relatively “easy” cases until now, this article puts forward an interpretative solution for potential “hard” cases by drawing on the US experience. Such a solution has two main advantages. On the one hand, it would reconcile the two policy dimensions embedded in reverse payments. On the other hand, it would enable the Commission to enforce Competition Law taking into account the peculiarities of the European context.
This paper contests the foundational assumption of law and economics that efficiency is about the... more This paper contests the foundational assumption of law and economics that efficiency is about the maximization of total, overall or societal welfare. Instead, it is argued that assuming consumer welfare maximization allows to build an argument in favor of competitive markets more consistent with political economics theory. The argument is not considered conclusive by the Author, but it appears promising. The developed framework is consequently applied to the discussion stemmed from Posner and Landes's article "The Economics of the Babies Shortage" and to a law and economics critique of the unconscionability doctrine. In both cases, the result of the analysis is that my framework offers arguments in support of those legal rules criticized by a conventional law and economics approach.
In this paper I evaluate Richard Posner's discussion on "pragmatism". The result of the analysis ... more In this paper I evaluate Richard Posner's discussion on "pragmatism". The result of the analysis is that Posner can arguably use only a very weak meaning of pragmatism ("policy jurisprudence"). The discussion first points out the features of legal pragmatism, as generally understood. The focus then moves to Posner's own position on the topic. Finally, the two conceptions of pragmatism are used for evaluating to which extent Posner's economic analysis of law is pragmatic.
Drafts by Fabrizio Esposito
This article claims that the behavioural turn in Law and Economics started around 1998 vindicates... more This article claims that the behavioural turn in Law and Economics started around 1998 vindicates the approach of the pre-turn New Haven School. Available accounts of the turn offer useful methodological insights but are unconvincing, especially for their simplification of the literature. Building on these insights, the pre-and post-turn literature are reviewed distinguishing a normative, a descriptive, and a prescriptive level of analysis. Comparing the two strains of literature shows that some pre-turn positions are more in accord with the post-turn literature than others. Importantly, the Chicago approach—mainstream in the pre-turn literature— has received a deep impact by the turn, whereas the New Haven approach—then minoritarian—is substantially compatible with the post-turn mainstream positions. Hence, the conclusion that the turn vindicates, at least theoretically, the approach of the New Haven School.
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Papers by Fabrizio Esposito
Drafts by Fabrizio Esposito
The aim of the workshop is to discuss how the relationship between economic law and economics can be accounted for theoretically. It will also provide a forum for reflection on how this interaction plays out in legislative, regulatory, judicial and academic practice. A better understanding of the dynamic between economic law and economic theory not only contributes to a clearer semantics of the term "economic" but yields important insights about the potential and limitations of formulating "Law and Economics" as a distinct approach to law.
See the attached CfP for further details and some indicative questions we are planning to discuss. Please spread the news and submit your paper proposal by 30 June!