Regulatory Validity

Behavioural forms of regulation, e.g. nudging and debiasing, increasingly take centre stage in regulatory agendas and are making their way into consumer law. In order to warrant for an effective implementation from a legal point of view, findings from behavioural sciences need to confirm with the regulatory context conditions of the underlying legal system and need to be fit for purpose to answer questions the law requires. Behavioural studies hence need to pass a regulatory validity test before they can be operationalised in the law. Subsequently I will explain how such a regulatory validity check can work in consumer law. I will first illustrate the different context conditions of behavioural sciences and law (I.). Subsequently, I will illustrate these differences on the example of a comparison of the recently commissioned behavioural science study on the “vulnerable consumer” and the legal requirements of the “average consumer” benchmark (II.). To overcome the so illustrated shortfalls I will introduce a regulatory validity test which can be applied by behavioural and legal scientist, courts, regulators (III.). I will conclude then conclude the findings (IV.).

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