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Freedom of choice and paternalism in contract law: a law and economics perspective

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  • Peter Cserne

    (University of Hamburg)

Abstract

This paper is a preliminary discussion of some theoretical and methodological issues related to my PhD thesis. The topic of the dissertation can be succinctly formulated as the legal and economic analysis of paternalism in contract law. The thesis starts with some discussion of conceptual and normative issues of paternalism in political and legal philosophy, and then focuses on legal policy questions in contract law. Methodologically, my purpose is to analyse whether and how the traditional economic arguments against paternalism and for freedom of contract should be reassessed in light of recent empirical and theoretical studies. More specifically, the question is whether the anti-paternalist view based on consumer sovereignty remains valid if, following behavioural decision theory we assume that not only (at least one of)the contracting individuals but also the legislator/regulator is imperfectly rational or not fully informed. That is, whether we have to modify the traditional anti-paternalism of law and economics for anti-anti-paternalism: a limited and critical version of paternalism. In this paper I discuss the conceptual and methodological background of an economic approach to paternalism in contract law.

Suggested Citation

  • Peter Cserne, "undated". "Freedom of choice and paternalism in contract law: a law and economics perspective," German Working Papers in Law and Economics 2006-1-1139, Berkeley Electronic Press.
  • Handle: RePEc:bep:dewple:2006-1-1139
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    File URL: http://www.bepress.com/cgi/viewcontent.cgi?article=1139&context=gwp
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    References listed on IDEAS

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    1. Sen, Amartya Kumar, 1970. "The Impossibility of a Paretian Liberal," Scholarly Articles 3612779, Harvard University Department of Economics.
    2. Sen, Amartya, 1970. "The Impossibility of a Paretian Liberal," Journal of Political Economy, University of Chicago Press, vol. 78(1), pages 152-157, Jan.-Feb..
    3. Alan Schwartz, 2000. "Contract theory and Theories of Contract Régulation," Revue d'Économie Industrielle, Programme National Persée, vol. 92(1), pages 101-110.
    4. Alan Schwartz & Robert Scott, "undated". "Contract Theory and the Limits of Contract Law," Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy Working Paper Series yale_lepp-1011, Yale Law School John M. Olin Center for Studies in Law, Economics, and Public Policy.
    5. Steven Shavell, 2003. "Economic Analysis of Contract Law," NBER Working Papers 9696, National Bureau of Economic Research, Inc.
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    Keywords

    paternalism; contract regulation;

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