ContractsProf Blog

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University of South Dakota School of Law

Friday, March 3, 2017

Eyal Zamir (Hebrew University of Jerusalem) - KCON Scholarship Spotlight

The conference is over but the scholarship lives on. This is one of a series of posts highlighting several KCON XII presenters who graciously provided me with abstracts or summaries of their presentations.

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Pricing Methods, Marketing Techniques, and the Law of Consumer Contracts

Eyal Zamir (Hebrew University of Jerusalem, Faculty of Law)

(Based on a forthcoming book, Behavioral Law and Economics (co-authored with Doron Teichman, OUP)) 

Introduction

  Eyal Zamir (Hebrew University)           In our daily life, we all manipulate, and are being manipulated by, others. As Eladar Shafir has put it, being manipulated is an integral part of the human condition. Marketeers do it for a living.

            Firms employ various marketing and pricing methods, which arguably exploit consumers’ heuristics and biases, to enhance their sales and profits. Some of these techniques are clearly illegitimate and even illegal. Others raise difficult questions regarding their legitimacy and the appropriate legal response to them. In my presentation I will describe a few pricing and marketing techniques that are not obviously illegitimate, and raise the question of whether they should be regulated. I intentionally use the language of “raise the question,” because I will not offer definitive answers.

            The methodological perspective I use is commonly described as behavioral law and economics. A primary contribution of behavioral law and economics lies in the identification of behavioral market failures. In addition to traditional market failures, such as monopolies and information problems, markets may fail to promote social utility due to deviations from the assumption that all players in the market are rational maximizers of their utility.

            However, I will not limit myself to the behavioral-economic perspective, as behavioral insights are equally relevant to non-economic perspectives that highlight other values in lieu of, or in addition to, maximizing aggregate human welfare. These include respect for autonomy, fairness, and distributive justice.

            However, due to time limitations, I will neither be able to consider all of these perspectives, nor to delve into the choice between different regulatory measures: disclosure duties, compulsory interventions, and mere nudges. Some people identify the behavioral perspective with the use of nudges, but this is a mistake. Behavioral findings may justify more intrusive regulation. I believe that mandatory regulation is often warranted, and that paternalism—despite its bad PR—is often justified. But I will not go into these issues today.

            Relatedly, the pricing and marketing techniques I will discuss are used not only in consumer transactions, but in commercial ones, as well. Hence, my discussion is not limited to the consumer sphere, although the normative considerations in commercial transactions may be different.

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