Did You Say ‘Theories of Choice’?

Abstract

This chapter takes up two difficult questions: ‘does the law contain one or more theories of choice?’ and, if it does, ‘is there a meta-theory to tell us which theory of choice to use in which cases?’ Even if one retains a loose definition of what counts as a ‘theory of choice’, there are reasons to be sceptical about the enterprise of mapping out theories of choice underpinning the law. This is because the supply of such theories is both abundant and incomplete while the demand is generally weak. Consumer protection, which purports to protect ‘consumer choice’, would seem to be a designated area of law to look for theories of (consumer) choice. However, an enquiry into legislative work on consumer protection reveals paradoxical efforts to confirm the theory that consumers do well with information rather than investigate alternative theories. It also appears that consumer law embeds several different conflicting theories of consumer choice without any sign of a meta-theory indicating which theory applies to which cases. In addition, where there is a theory of consumer harm justifying legislative intervention, it seems to matter little that we do not have a theory for how consumer choice is distorted. In short, the legislative appetite for theories of choice seems limited. Legal scholarship offers a different picture. A space has emerged in which to discuss theories of choice within legal analysis, which is still in the process of being shaped. Tentatively, it is suggested that the legal literature offers a contrast between deep and narrow discussions of theories of choice, and wide and shallow ones.