Bankruptcy Policy in Light of Manipulation in Credit Advertising

Abstract

This Article argues that when credit suppliers market and advertise their credit products, they utilize and enhance consumers’ cognitive biases, particularly their optimism bias and illusion of control. We apply the concept of manipulation to this practice. The biased and manipulated debtors attribute unrealistically low probability to negative life events, such as job loss, illness, accident or divorce, and high probability to positive life events. As a result of the manipulation, the biased debtors are triggered to borrow more than they would have borrowed otherwise. This additional borrowing may contribute to the default of these debtors and to their eventual bankruptcy. Empirical studies of the causes of bankruptcy show that before their default, bankrupts have often experienced negative life events that decrease income, increase expenses, or both. The bias and its manipulation justify legal intervention. The Article discusses various justifications for legal intervention and offers tentative and partial prescriptions for intervention. It analyzes the comparative advantages and shortcomings of ex ante intervention, in the form of regulation of credit marketing practices and credit contracts, of tax and insurance, and ex post intervention, at the bankruptcy stage. Its main contribution is in bringing together bodies of literature on cognitive biases, consumer decision making, lifecycle, social influence, advertising and marketing, behavioral law and economics, economic analysis of bankruptcy and socio-legal studies of bankruptcy. By combining these bodies of literature, the Article provides a new perspective on bankruptcy and credit and offers a promising framework for future work.