Consumer protection or interfering with freedom?
Kate Tokeley “Consumer Law and Paternalism: A Framework for Policy Decision–making” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The author of this paper tackles the difficult question of when it is appropriate for the state to intervene with the freedom of consumers in order to protect them. Paternalistic law is often controversial and creating a framework to assist with that decision making process is what this paper proposes. The author states a number of factors within that framework and discusses how each factor may strengthen or weaken the justification for intervention. More widely the paper traverses the ‘consumer freedom-paternalism’ debate and discusses the importance of establishing ‘consumer welfare’ in relation to ‘consumer preferences’. The effectiveness of regulation and its unintended consequences are also discussed as part of the gambit of considerations that policy makers of paternalistic law need to consider. Overall this paper lifts the debate from a political realm of whether it is right to intervene in people lives or not, to a more systematic analysis of the facts and likely outcomes of any paternalistic law.
See also Kate Tokeley “Consumer Law and Paternalism: A Framework for Policy Decision–making” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).