Issue 01/2013

Case Notes - The HOB-vĂ­n Judgment: A Failed Attempt to Standardise the Visual Imagery, Packaging and Appeal of Alcohol Products
Prof. Dr. Alberto Alemanno
EFTA Court, Case E-2/12, HOB-vín ehf. v. The State Alcohol and Tobacco Company of Iceland (ÁTVR).
Nudge and the Manipulation of Choice
Pelle Guldborg Hansen, Andreas MaalĂže Jespersen
In Nudge (2008) Richard Thaler and Cass Sunstein suggested that public policy-makers arrange decision-making contexts in ways to promote behaviour change in the interest of individual citizens as well as that of society. However, in the public sphere and Academia alike widespread discussions have appeared concerning the public acceptability of nudgebased behavioural policy. Thaler and Sunstein’s own position is that the anti-nudge position is a literal non-starter, because citizens are always influenced by the decision making context anyway, and nudging is liberty preserving and acceptable if guided by Libertarian Paternalism and Rawls’ publicity principle. A persistent and central tenet in the criticism disputing the acceptability of the approach is that nudging works by manipulating citizens’ choices. In this paper, we argue that both lines of argumentation are seriously flawed. We show how the anti-nudge position is not a literal non-starter due to the responsibilities that accrue on policy-makers by the intentional intervention in citizens’ life, how nudging is not essentially liberty preserving and why the approach is not necessarily acceptable even if satisfying Rawls’ publicity principle. We then use the psychological dual process theory underlying the approach as well as an epistemic transparency criterion identified by Thaler and Sunstein themselves to show that nudging is not necessarily about “manipulation”, nor necessarily about influencing “choice”. The result is a framework identifying four types of nudges that may be used to provide a central component for more nuanced normative considerations as well as a basis for policy recommendations.
Towards Principles-Based Approaches to Governance of Health-Related Research Using Personal Data
Prof. Dr. Graeme Laurie, Nayha Sethi
Technological advances in the quality, availability and linkage potential of health data for research make the need to develop robust and effective information governance mechanisms more pressing than ever before; they also lead us to question the utility of governance devices used hitherto such as consent and anonymisation. This article assesses and advocates a principles-based approach, contrasting this with traditional rule-based approaches, and proposes a model of principled proportionate governance. It is suggested that the approach not only serves as the basis for good governance in contemporary data linkage but also that it provides a platform to assess legal reforms such as the draft Data Protection Regulation.
Not Entirely Reliable: Private Scientific Organizations and Risk Regulation – The Case of Electromagnetic Fields
Prof. Dr. Gabriel Doménech Pascual
Private scientific organizations exert a great deal of influence in the regulation of some technological risks. The high level of expertise of their members is arguably a good reason for them to participate in making and monitoring risk regulations, in order to adjust these to scientific progress. Nevertheless, there are also sound reasons why governments shouldn’t uncritically follow the views expressed by such organizations. Taking the role played by the International Commission on Non-Ionizing Radiation Protection in the regulation of electromagnetic fields as an illustrative example, this paper shows that private scientific organizations such as these are structurally less well suited than democratic authorities when it comes to managing those risks.
The Role of the Discount Rate in Cost-Benefit Analysis Between Theory and Practice: A Comparative Survey
Felice Simonelli
This study focuses on the role of the discount rate in cost-benefit analysis (CBA) of regulation, providing a systematic investigation into regulatory practice vis-à-vis the existing economic theories. In the first part, a quick survey of the main economic literature on the social discount rate (SDR) is presented. In the second part, the current institutional practice is investigated, firstly comparing the recommendations on discounting issued by institutional actors in the US (Office of Management Budget, Environmental Protection Agency) and the EU (Commission), and secondly examining the SDRs adopted in two samples of CBAs selected among Regulatory Impact Analyses of US EPA and Impact Assessments of EU Directorate-General for the Environment. A gap exists between economic theory and institutional practice in the selection of the SDR. Regulatory decisions which are based on CBA reflect the most workable economic literature on discounting rather than the most theoretically consistent one, thus yielding less reliable and less robust results. Scholars who aim at improving the quality of rule-making and at fostering the application of CBA in regulatory decisions should improve the “operational validity” of their research, thus providing practitioners with methods that are both consistent and workable.


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