Keywords: starting-point bias, wta-wtp divergence, social representation JEL Classification: C81, C90, H43, Q51

Surveys are sometimes viewed with suspicion when used to provide economic values, since they are sensitive to framing effects. However, the extent to which those effects may vary between individuals has received little attention. Are some individuals less sensitive to framing effects than others? We use the theory of social representation to assign to each individual a new variable to serve as a proxy for the individual's sensitivity to framing effects. This allows to gather new and relevant information to limit the impact of framing effects. We examine two framing effects, starting-point bias and willingness-to-pay and willingness-to-accept divergence.

Introduction

It has long been recognized that the design of a survey may influence respondents' answers. In the particular case in which respondents have to estimate numerical values, this implies that two different surveys may lead to two different valuations of the same object. Such a variation of answers, induced by non-significant change in the survey design, is called a framing effect. Consequently, surveys are sometimes viewed with suspicion when used to provide economic values, since framing effects may alter the quality of survey-based valuation. The existence of these effects is well-documented [START_REF] Levin | All frames are created equal : a typology and critical analysis of framing effects[END_REF]. However, the extent to which they may vary between individuals has received little attention. Are some individuals less sensitive to framing effects than others? How to detect them? These are the questions addressed in this paper.

Our basic idea is to use the theory of social representation to assign to each individual a new variable. This variable represents a proxy for the individual's sensitivity to framing effects. According to this representation variable, we isolate two types of individuals. The first type is proved to be less sensitive to framing effects than the other. We examine two framing effects that are known to have a dramatic effect on valuation, namely, starting-point bias and willingness-to-pay (WTP) and willingness-toaccept (WTA) divergence. The results suggest that taking into account heterogenous sensitivity to framing effects is successful in limiting the impact of biases. Furthermore, they prove that the constructed representation variable is not correlated to any of the usual variables. Thus, using the representation variable allows researchers to gather relevant new information.

The paper is organized as follows. Section 2 details how social representation can be used to design a new individual variable. Section 3 presents a study of the problem of starting-point bias in contingent valuation surveys. Section 4 deals with WTA and WTP divergence. Section 5 provides a discussion, and Section 6 concludes.

Representation as a source of heterogeneity

Representations are defined in a broad sense by social psychologists as a form of knowledge that serves as a basis for perceiving and interpreting reality, as well as for guiding one's behavior. Representation could concern a specific object, or a more general notion of social interest1 . The founding work [START_REF] Moscovici | La psychanalyse, son image et son public[END_REF] explores the representation of psychoanalysis. In the following decades, various topics have been investigated: representation of different cities, madness, remarkable places, hunting, AIDS, among others (see the different articles presented in Farr and[START_REF] Farr | Social representations[END_REF][START_REF] Moscovici | Psychologie Sociale[END_REF]. The theory of representation has proved useful in the study of economic subjects such as saving and debt [START_REF] Viaud | A positional and representational analysis of consumption: Households when facing debt and credit[END_REF], or the electronic purse [START_REF] Penz | It's practical but no more controllable: Social representation of the electronic purse in Austria[END_REF].

The basic structure of a social representation is composed of a central core and of peripheral elements [START_REF] Abric | Central system, peripheral system: their functions and roles in the dynamics of social representation[END_REF]. The central core contains the most obvious elements commonly associated with the object. They can be viewed as stereotypes or common sense. Those elements are not subject to any dispute, as everyone agrees that they are related to the object described. The core in itself does not contain much information and usually is not a surprise to an observer. The peripheral elements, however, contain fewer consensual elements and are less obvious. They represent potential changes in the social representation and indicate new elements that may in the near future become part of the core. They are, somehow, rivals of the core elements.

There are several ways to explore the composition of social representations of particular subjects (namely, ethnography, interviews, focus-groups, the content analysis of the media, questionnaires and experiments). In what follows, we will focus on a particular technique, which is the statistical analysis of word associations. These word associations are gathered through answers to an open-ended question such as "What are the words that come to mind when thinking of [the object]?" or "What does [the object] evoke to you?". Thus, the purpose of such questions is to investigate the words being spontaneously associated with a given object. The next step is thus to determine the core of the social representation, on the basis of those individual answers. Once the core has been found, we sort individuals according to those who refer to the core of the social representation and those who don't. This "aller-retour" between social and individual representations can be compared to an election system where individual opinions are aggregated, using majority voting. Once individuals have voted, it is possible to recognize who belongs to the majority and who doesn't. All in all, the task is to transform representations (i.e. lists of words) into a quantitative and individual variable.

The method consists of four steps, each of which is illustrated with an example, namely the Camargue representation 2 . The Camargue is a major wetland in the delta of the Rhône (south of France) covering 75.000 hectares. Of exceptional biological diversity, it hosts many fragile ecosystems and is inhabited by numerous species. The survey was administered to 218 visitors to the Camargue at the end of their visit 3 . Note that the A c c e p t e d M a n u s c r i p t respondents had therefore spent some time in the Camargue.

Step 1: The data: collecting lists of words

The usual way to collect information on representation is by open-ended questions. More precisely, we use a question such as: "What does [the object] evoke to you?" or "What are the words that come to mind when thinking of [the object]?". Individuals are expected to provide a list of words or expressions. Thus, the data take the form of ordered lists of words. The set of answers typically displays a large number of different words, as each individual provides different answers. Indeed, a great variety of words can be used to describe a given object [START_REF] Vergès | Approche du noyau central: propriétés quantitatives et structurales[END_REF][START_REF] Wagner | Theory and method of social representations[END_REF].

Application: In our questionnaire, respondents were asked: "What words come to your mind when you think about the Camargue?" More than 300 different words or expressions were obtained.

Step 2: Classification: choosing a typology for words An individual representation is captured through an ordered list of words. The high number of different words (say 100 to 500) imposes a categorization (i.e. clustering words that are "close" enough). Choosing a particular categorization thus consists in defining a particular typology for the set of words. Empirical applications typically use six to ten categories that are chosen to form homogeneous categories. This step is the only one that leaves the researcher with some degree of freedom since the notion of proximity is not straightforward.

After categorization, each individual's answer is transformed into an ordered list of categories (rather than a list of words). At the end of this categorization, we are left with individual representations containing doubles, that is, with several attributes belonging to the same category. To obtain transitive individual representations, we suppress the lower-ranking citations belonging to the same category. Such treatment eliminates some information. In our case, the length of individual answers decreased by 20%.

After treatment (i.e. categorization + suppression of doubles), individual representations boil down to an individual ranking of the set of categories.

Application: A basic categorization by frame of reference leads to eight different categories. For instance, the first category is called Fauna and Flora. It contains all the attributes that refer to the animals and local vegetation of the Camargue (fauna, 62

A c c e p t e d M a n u s c r i p t citations, birds, 44, flora, 44, bulls, 37, horses, 53, flamingos, 36, . . . ). The other categories are Landscape, Disorientation, Isolation, Preservation, Human presence and Coast. A particular case is the category Nature, which contains only the word nature which can hardly fall into any of the previous categories. There is a ninth category that clusters all attributes that do not refer to any of the categories mentioned above 4 .

Step 3: Finding the core

The simplest way of determining the core element is to classify the different categories according to their citation rate. The core is thus composed of the category that is most widely used by individuals. This is in accordance with the definition of the core as the most consensual and widely accepted elements associated with a given object.

Application: After consolidating the data in step 2, we were left with 218 ordered lists of categories. We computed the number of appearances for each category. The results are presented in 4 After categorization and deletion of doubles, the average number of attributes evoked by the respondents falls from 5.5 to 4.0.

5 A quick look at any website about the Camargue is also a way of confirming Fauna-Flora as the obvious aspect of the Camargue. Among others, see www.parc-camargue.fr or www.camargue.com.

A c c e p t e d M a n u s c r i p t

Step 4: Sorting individuals

We choose to isolate individuals who do not mention the top element of the social representation (i.e. the core of the social representation). This leads to a breakdown of individuals into two sub-samples: one that contains the individuals who used the core element in their representation and one that contains the individuals who did not.

The main reason for this is that it is remarkable not to mention any of the core elements. It is thus assumed that not mentioning the core is indeed significant. Since it does not conform to most common practice, this group is often referred to as "minority". The other group, which mentions the core element, is referred to as "mainstream".

Application: In the case of the Camargue, the subjects were interviewed at the end of their visit and had seen a lot of animals and plants (they could even see some of them while being interviewed). A small minority of individuals did not refer to Fauna and Flora (18% of the total population, see Table 1).

Given these four steps, we are left with two categories of individuals. This leads to a breakdown of individuals into two sub-samples: those who refer to the core of the social representation (mainstream) and the others (minority). We can define a mainstream dummy variable, which can be used to control the sensitivity to framing effects. To do so, existing models have to be adapted. In the following, we use this new variable with empirical data, considering two standard framing effects, starting point bias and WTA-WTP divergence.

Starting-point bias

In contingent valuation, respondents are asked whether they are willing to pay a fixed sum of money for a given policy to be implemented. This discrete choice format is recommended by the NOAA panel over other methods (a panel of experts that sets guidelines to run evaluation surveys; see [START_REF] Arrow | Report of the NOAA panel on contingent valuation[END_REF]. This "take it or leave it" format mimics a market situation that individuals face in everyday market transactions, and it is incentive-compatible. However, a major drawback is that it leads to a qualitative dependent variable (the respondent answers yes or no), which reveals little about the individual's willingness-to-pay (WTP). To gather more information on respondents' WTP, [START_REF] Hanemann | Some issues in continuous and discrete response contingent valuation studies[END_REF] and [START_REF] Carson | Three essays on contingent valuation (welfare economics, non-market goods, water quality[END_REF] proposed adding a follow-up discrete choice question to improve the efficiency of discrete choice questionnaires. This mechanism is known as the double bounded model. It basically consists of proposing a second bid to the respondent, greater than the first bid, if the respondent's first answer is yes, and Several studies have found that estimates of the mean of willingness-to-pay are substantially different from estimates based on the first question alone. This is the so-called starting-point bias [START_REF] Herriges | Starting point bias in dichotomous choice valuation with follow-up questioning[END_REF], which can be seen as a particular case of the anchoring bias put forward by [START_REF] Tversky | Judgment under uncertainty: Heuristics and biases[END_REF] 6 . Different models have been proposed in the literature to control for such undesirable effects. However, empirical results suggest that efficiency gains obtained with follow-up questions are lost relative to models using first questions only. All these models assume that all individuals are equally sensitive to starting-point bias. In this section, we consider that some individuals may be more sensitive than others to starting-point bias. We develop a model to handle starting-point bias with heterogeneity in two groups. An application shows that, with individual sensitivity to starting-point bias, we can control for starting-point bias with efficiency gains.

Model

Different models are proposed in the literature to control for starting-point bias in double-bounded models. All of these models assume that the second answer is sensitive to the first bid offer, in the sense that a prior willingness-to-pay W i is used by the respondent i to respond to the first bid offer, b 1i , and an updated willingness-to-pay W i is used to respond to the second bid, b 2i . Each model leads to a specific definition of W i . [START_REF] Whitehead | Incentive incompatibility and starting-point bias in iterative valuation questions[END_REF] proposes a general model, combining several effects, as follows:

W i = W i + γ (b 1i -W i ) + δ, (1)
where γ and δ are two parameters. If δ = 0 this model corresponds to the Anchoring model proposed by [START_REF] Herriges | Starting point bias in dichotomous choice valuation with follow-up questioning[END_REF], where the respondents combine their prior WTP with the value provided by the first bid, such that the first bid offer plays the role of an anchor. The parameter γ measures the strength of the anchoring effect (0 ≤ γ ≤ 1). If γ = 0 this model corresponds to the Shift model proposed by [START_REF] Alberini | Modeling response incentive effects in dichotomous choice valuation data[END_REF], where the WTP systematically shifts between the two answers. The first bid offer is thus interpreted as providing information about the cost or the quality of the object: a respondent can interpret a higher bid offer as paying more for the same object 6 The anchoring bias appears in experimental settings in which subjects are asked to provide numerical estimations (e.g. the height of Mount Everest). Prior to the estimation stage, they are asked to compare their value to an externally provided value (e.g. 20.000 feet). This last value received the name of anchor as it was proved to have a great influence on subjects' valuations (i.e. a different anchor, or starting point, leads to a different valuation)

A c c e p t e d M a n u s c r i p t and a lower bid offer as paying less for a lower quality object. The model (1) combines both Anchoring and Shift effects.

In model ( 1), all individuals are supposed to be sensitive to the first bid offer in the same manner: the two parameters γ and δ are constant across individuals. If only some respondents are influenced by the first bid (i.e. they combine their prior WTP with the first bid), while the others do not, individual heterogeneity is present. It is well known that econometric estimation of regression models can be seriously misleading if such heterogeneity is not taken into account. Let us assume that we can divide respondents into two distinct groups: one group subject to starting-point bias and another insensitive. We define a Heterogenous model as

W i =    W i if I i = 0 W i + γ (b 1i -W i ) + δ if I i = 1 (2)
where I i is a dummy variable that is equal to 1 when individual i belongs to one group and 0 if he belongs to the other group. Note that, if I i = 1 for all respondents, this model reduces to the Anchoring & Shift model ; if I i = 0 for all respondents, it reduces to the standard Double-bounded model.

These models can be estimated with random effect probit models, taking into account the dynamic aspect of follow-up questions [START_REF] Cameron | Estimation using contingent valuation data from a dichotomous choice with follow-up questionnaire[END_REF][START_REF] Alberini | Modeling response incentive effects in dichotomous choice valuation data[END_REF][START_REF] Whitehead | Incentive incompatibility and starting-point bias in iterative valuation questions: reply[END_REF]). Estimation requires simulated methods and a formal definition of the probability that the individual i answers yes to the j th question, j = 1, 2. For the heterogenous model (2), we calculate this probability, which is equal to

P (W ji > b ji ) = Φ X i α - 1 σ b ji + θ (b 1i -b ji )I i D j + λI i D j (3)
where D 1 = 0 and D 2 = 1, α = β/σ, θ = γ/(σ -γσ) and λ = δ/(σ -γσ). Based on this equation, the parameters are interrelated according to

β = ασ, γ = θσ/(1 + θσ) and δ = λσ(1 -γ). (4)
Implementation of the Double-bounded model is obtained with δ = γ = 0, which corresponds to θ = λ = 0 in (3). Implementation of the Anchoring & Shift model is obtained with I i = 1 for i = 1, . . . , n. For a more detailed discussion on the estimation of a random effect probit model, see [START_REF] Alberini | Modeling response incentive effects in dichotomous choice valuation data[END_REF] and [START_REF] Whitehead | Incentive incompatibility and starting-point bias in iterative valuation questions: reply[END_REF].

Results

We use the dummy variable mainstream, defined in the previous section, and the Camargue survey to conduct an application. In practice, a value of particular interest is model). Moreover, the precision of the parameter estimates of the regressors is quite similar for the different models using follow-up questions. The anchoring parameter γ is statistically significant when we perform a likelihood-ratio (LR) test of the null hypothesis γ = 0, not the shift parameter δ. It suggests that when the minority group is not sensitive to starting-point bias (γ = 0, see equation 2), the mainstream group is significantly subject to such an effect (γ = 0.26, with 0 ≤ γ ≤ 1).

Finally, the Heterogeneous model performs better than the others: it provides consistent results with the Single-bounded model and greatly improves the precision of the estimation. This suggests that taking into acount an individual sensitivity to startingpoint bias does indeed matter.

Over the past twenty years, a large pattern of empirical evidence has accumulated suggesting a significant divergence between willingness-to-pay (WTP) measures of value, where individuals have to pay for a given object or policy, and willingness-to-accept (WTA) measures of value, where individuals sell the same object or receive money to compensate for the suppression of the same policy [START_REF] Brookshire | Measuring the value of a public good: an empirical comparison of elicitation procedures[END_REF]. Economic theory suggests that, with small income effects, WTP and WTA should be equivalent. Results from a meta-analysis however prove that the divergence, measured by the ratio WTA/WTP, is often high (i.e. the ratio largely exceeds one) [START_REF] Sayman | Effects of study design characteristics on the wta-wtp disparity: a meta analytical framework[END_REF]. Since valuation measures are used for the study of many public-policy questions, these results raise questions about which procedure to use in practice.

The divergence is frequent but can be controlled for. The existence of substitutes has been proved to play an important role [START_REF] Shogren | Resolving differences in willingness to pay and willingness to accept[END_REF]). In the case of private goods the divergence disappears if subjects are recruited among experienced dealers [START_REF] List | Does market experience eliminate market anomalies[END_REF][START_REF] List | Neoclassical theory versus prospect theory: Evidence from the marketplace[END_REF]. This suggests that individuals may learn to avoid the divergence. This intuition is confirmed by the design of an experimental protocol that eliminates the divergence [START_REF] Plott | The willingness to pay/willingness to accept gap, the endowment effect, subject misconceptions and experimental procedures for eliciting valuations[END_REF]. The basic ingredients of this protocol are the existence of training rounds and the use of incentive-compatible mechanisms. Taken together, the previous results suggest that subjects may learn to overcome the divergence within a short period of time. These results, however, apply to private goods. If we consider the valuation of some public policy, the time between the survey and the implementation of the policy is too long to implement training rounds. This is the reason why being able to detect subjects who are prone to framing effects is of particular interest for contingent valuations.

Survey

To measure the discrepancy between WTA and WTP for public goods, we needed to find a public good that can be sold or withdrawn, or bought or provided. Such public goods are not the most common ones. However, we were lucky enough to be offered a golden opportunity. The University of Marne la Vallée (France) was considering changing its Saturday morning classes policy. The growing number of students led to an increasing number of classes on Saturday morning due to the lack of available classrooms. Students started to protest and asked for a clarification of the policy regarding classes on Saturday morning. Two options were considered. Some students were told they would pay lower fees if they accepted classes scheduled on Saturday, since the university could then rent

A c c e p t e d M a n u s c r i p t

the extra classroom during the week to movie companies to use for filming on location. Other students were offered the option of avoiding Saturday classes by paying higher fees, as the university would have to rent an extra building. Therefore, the trade-off was between paying more to avoid Saturday classes and being paid to attend them. Note that even though the survey concerned students, it was used to take a real decision. Thus, answers to this particular survey had an impact on the respondents' welfare.

We conducted a contingent valuation survey to evaluate both the willingness to pay to avoid classes on Saturday and the willingness to accept classes on Saturday morning. The survey was given to 359 students at the University of Marne La Vallée: 184 individuals were given the WTP version, 175 the WTA one (subjects were randomly assigned to one version).

Heterogeneity

Gathering information on social representations using an additional open-ended question leads to our four-step methodology. We propose here to simplify this treatment by running this methodology on a sample of subjects, at a pre-test stage, to identify the items that capture most of the opposition between mainstream and minority. This allows us to detect mainstream and minority using a simple discrete choice question. This greatly simplified the exploitation of the data. While the use of an open-ended question implies a specific treatment (categorization and so on), the use of a simple question does away with the need for any treatment.

Prior to the survey, we elicited the representations "of classes on Saturday morning". Quite surprisingly, the survey revealed two groups that differ more broadly on their vision of university rather than on their vision of Saturday morning (we were expecting more precise reasons, such as the opportunity to have a job on Saturday morning, religious reasons). For the mainstream, the main goal of their studies is to get diplomas, while the minority consider that the most important thing to get from university is skills. Following our method, we then decided to include in the contingent valuation survey an additional question labeled as follows:

In your opinion, the main purpose of your studies is to get:

diplomas 2. skills

The two items were presented in a random order. As expected, a large majority, 71%, of the 359 respondents, chose the first option (diplomas), and only a minority chose the second option (skills). We now propose to explore the impact of this distinction on the WTA-WTP divergence.

A c c e p t e d M a n u s c r i p t

Results

Table 4 shows the WTP and WTA means for all the students (384, 175 for the WTA version and 184 for the WTP version) and for the two sub-groups (those who answer Diplomas and those who answer Skills). The last line presents the WTA/WTP ratio.

All Diplomas Skills WTA 68.7 71.9 62.5 WTP 15.3 12.5 23.3 Ratio 4.5 5.8 2.7

Table 4: WTA/WTP divergence If we neglect the distinction among respondents, the WTA and WTP means are very different, respectively equal to 68.7 and 15.3. The WTA/WTP ratio largely exceeds one and is equal to 4.5. Then, we calculate the WTA and WTP means for individuals who answered the question (diplomas and skills) separately. When we consider the mainstream group (Diplomas), the discrepancy between WTA and WTP is wide and the ratio higher (5.8). However, when we consider the minority group (Skills), the discrepancy and the ratio (2.7) are significantly reduced. Students from the minority group are less sensitive to the WTA and WTP divergence. Even if the discrepancy is not completely removed, the mainstream variable allows us to separate the whole population into two groups that highly differ in their sensibility to framing effects since the ratio falls from 5.8 for the mainstream group to 2.7 for the minority.

Further results and discussion

The previous results show that it is possible to extract information on individual representation for a given object and that it can be successfully used as a good proxy for the individual sensibility to framing effects. Evidence was presented for two distinct sets of data and two different well-known framing effects. Thus far, we have basically found a statistically significant relationship between the mainstream variable and the sensitivity to framing effects. The remaining question is thus why does this occur? The first section proves that the representation variable conveys new information that is not related to other individual characteristics. The second section proposes an interpretation of the link between social representation and framing effects. General considerations on social representation are given in a third section. The last section deals with possible improvements to the proposed approach.

A c c e p t e d M a n u s c r i p t

Does representation provide new information ?

Here, we check whether the dummy variable, based on social representation, is correlated with some other individual characteristics. First consider the Camargue survey. Table 5 shows the Pearson correlation coefficient ρ between the mainstream dummy variable and the regressors included in the regression model. A P -value is given in parenthesis for the null hypothesis ρ = 0. We can see that in all cases, the null is rejected (all the P-values are greater than 0.05). It suggests that the dummy variable is not correlated to the regressors.

Second, consider the Saturday classes survey. Table 6 shows the Pearson correlation coefficient ρ between the Diplomas/Skills dummy variable and other questions from the questionnaire. A P -value is given in parenthesis for the null hypothesis ρ = 0. We can see that in all cases, the null is rejected (all the P-values are greater than 0.05). Again, it suggests that the dummy variable is not correlated to the regressors.

These results suggest that the information obtained from individual representation cannot be captured by the use of standard individual characteristics. In this sense, it is new information, not related to standard questions in surveys.

A c c e p t e d M a n u s c r i p t

From representation to framing effects

Thus far, we have concentrated on the most technical aspects, based on statistical evidence. Here, we propose an interpretation about why representations can be linked to framing effects. This interpretation relies on three distinct arguments. The first two are nothing more than an application of general ideas developed in psychology and sociology. The key argument is thus the third one.

1. Our use of social representation is very classical on some points and more original on others. Identifying the core and peripheral elements of a social representation on the basis of a statistical analysis of word associations is a classic in social psychology. It is also admitted that peripheral elements are identified by a minority. Our approach thus consists in pooling all minorities in one group.

2. The next step of our reasoning is to assume that these individuals are conscious of not being members of the mainstream, while others may just follow the crowd with no clear consciousness of doing so. The idea that members of the minority have a more accurate perception of their identity is generally accepted in sociology. Thus, we associate a classical sociological argument with a more psychological one.

3. The core idea of our work is that the minority group on a particular subject has a stronger opinion (i.e. a more personal or elaborate point of view)7 . Thus, the minority is more likely to resist outside influences and is therefore less sensitive to framing effects.

A c c e p t e d M a n u s c r i p t

Representation as a marker of past experience

If you have never coped with an object or a situation in the past in the past, you are very likely to handle it at first glance in a very predictable way, using common sense or stereotypes (this is what the core represents) but if for any reason, you have been confronted with this problem in the past, it is very likely that you start recomposing your representation of this object or situation (you don't have the same representation of Paris once you've been there). According to that view, non-mainstream representations are then a consequence of past experiences. Representations can thus be thought of as a fast and frugal way to capture information about past experiences.

If we now concentrate on the problem of eliciting preferences (say for public decision making), representations allow us to isolate individuals that have somehow "invested" in their own preference. We expect them to hold a stronger opinion and have more stable preferences, thus being less sensitive to framing effects. Such a distinction is similar to the debate on the origin of individual preferences [START_REF] Slovic | The construction of preference[END_REF]. Members of the minority are assumed to be individuals who have set their preferences, while some members of the mainstream population are assumed to construct their preferences through the elicitation process. Our results suggest how to identify individuals who have set their preferences before the elicitation process begins. The existence of such a population is not a surprise since in any experiments that intend to detect biases, a small, but significant part of the subjects do not exhibit pathological preferences (among many references, see the experiments in [START_REF] Kahneman | Choices, Values and Frames[END_REF]. This paper is a first step towards detecting such individuals.

Criticism, improvements and further research

The proposed method has reached the goal of proving that a substantial heterogeneity relative to the sensitivity to framing effects exists, even in socially very homogenous populations such as students. The agenda for further research includes the design of more subtle tools to classify individuals. Here, we are able to isolate a population that proves to be much less sensitive to framing effects than the residual population. One can think of a more continuous variable that measures the sensitivity to framing effects.

The proposed methodology is open to criticism at two distinct levels. As we are exploiting an open-ended question, a choice has to be made on how to categorize the answers. A good classification requires the creation of homogeneous categories. Even A c c e p t e d M a n u s c r i p t though our classification8 tends to demonstrate the presence of individual sensitivity to framing effects, another choice could be considered. A second criticism may concern the way we construct the two subpopulations on the basis of the social representation. Our choice is to put respondents who cite the most cited category in a mainstream group, and the others in the minority group. Other choices and alternatives splits (with more than two groups) could be used. Finally, our dichotomous split has done a good job as a first step, but further research may help us to understand better the determinants of individual sensitivity to framing effects.

Conclusion

This paper is a first step towards approaching heterogeneity relative to the sensitivity to framing effects. A simple tool is designed to detect a group of individuals who is proved to be far less sensitive to framing effects than the reference population. This approach is effective on two distinct sets of data concerning different framing effects. This raises important questions at the normative level. How should values be set within heterogeneous groups? Should the values be computed using only the values of those detected as not sensitive to framing effects?

  A c c e p t e d M a n u s c r i p t lower otherwise.

A

  c c e p t e d M a n u s c r i p t

Table 1 .

 1 The top element, Fauna-Flora, is used by a large number of

	Category	Citation Rate Rank
	Fauna-Flora	82 %	1
	Landscape	74 %	2
	Isolation	58 %	3
	Preservation	51 %	4
	Human presence	34 %	5
	Nature	33 %	6
	Disorientation	32 %	7
	Coast	26 %	8

Table 1 :

 1 Citation Rank respondents, 82%. Only a minority do not use any element of this category. This is not a big surprise since the main interest of the Camargue (as presented in all related commercial publications or represented on postcards) is the Fauna and Flora category 5 .

Table 3 :

 3 Random effects probit models (standard errors in italics)

Table 5 :

 5 The Camargue survey: correlation coefficient.

Table 6 :

 6 Saturday classes survey: correlation coefficient.

A survey of the theory and methods used to study social representations can be found in[START_REF] Wagner | Theory and method of social representations[END_REF] and[START_REF] Canter | Empirical approaches to social representation[END_REF]

This method was originally developed in[START_REF] Flachaire | Heterogeneous anchoring in dichotomous choice valuation frameweork[END_REF]

See Claeys-Mekdade et al. (1999) for a complete description of the survey

Note that we do not exclude that some individuals may have a strong point of view that is in accordance with that of the mainstream. We only suggest that we can isolate some individuals holding a strong point of view.

A full description of the one we used is available in[START_REF] Hollard | Théorie du choix social et représentations : analyse d'une enquête sur le tourisme vert en camargue[END_REF]

Acknowledgements

The authors thank Jason Shogren and two anonymous referees for useful comments.

A c c e p t e d M a n u s c r i p t the estimate of the WTP mean. Once a model has been estimated, we can obtain fitted values Ŵi , for i = 1, . . . , n, from which we can calculate the estimate of the mean of WTP: μ = n -1 n i=1 Ŵi . We estimate the mean values of WTP from a linear model (MacFadden and Leonard 1993) and compute the confidence intervals by simulation with the Krinsky and Robb procedure (see Haab and McConnell 2003, ch.4). Table 2 presents estimates of the WTP mean, obtained from the Double-bounded, Anchoring & Shift and Heterogeneous models. We include estimates obtained from the Single-bounded, taking into account the first answers only. The analysis is based on two criteria: whether the mean of WTP is consistent (consistency) and whether the standard errors are more precise (efficiency) with those obtained from the Single-bounded model. The Single-bounded and Double-bounded models give very different WTP means: 113.5 and 89.8. Their confidence intervals do not overlap. Such inconsistent results suggest that follow-up questions generate starting-point bias in the Double-bounded model.

Model

To control for starting-point bias, we estimate an Anchoring & Shift model. The WTP mean is equal to 158.5. It is still very different from the WTP mean obtained from the Single-bounded model (113.5); however, the two confidence intervals overlap slightly. Note that the confidence interval is very wide and the gain in precision obtained by using follow-up questions is lost, a result suggested by Herriges and Shogren.

The Heterogeneous model gives a WTP mean of 110.1. It is very close to the 113.5 obtained from the Single-bounded model. Moreover, the confidence interval obtained from the Heterogeneous model ([99.0; 125.2]) is entirely contained in the confidence interval obtained from the Single-bounded model ([98.1; 138.2]), and thus is narrower. In other words, the Heterogeneous model provides consistent results with the Single-bounded model and is more precise.

Table 3 presents the full econometric results, that is, all the parameter estimates, with the standard errors given in italics. It is clear from this table that using follow-up questions (Double-bounded, Anchoring & Shift and Heterogenous models) provides significantly reduced standard errors, compared to using first answers only (Single-bounded


S Lacour

A Legal Version of the Nanoworld

Nanosciences and nanotechnologies come into a pre-existing legal system. Their arrival, and how they are received are worthy of analysis. Such an effort shall at first include simply lexical considerations, in order to penetrate, via their origins, the traces of these specific objects into the territory of law. The goal of this article is to explore the effects of "nanos" in various legal fields, including their relevance to the principle of precaution, patent law, and the applicable laws for chemical substances.

Résumé : Les nanosciences et nanotechnologies viennent s'inscrire dans un système juridique préexistant. Les modalités de leur réception par le droit méritent d'être analysées. Pour mener à bien cet exercice, il convient, après avoir exclu la piste d'une recherche purement lexicale, d'explorer quelques-unes des traces que l'émergence de ces objets spécifiques laisse dans le territoire du droit. C'est ce que tente de faire cet article, en se penchant sur l'effet des « nanos » dans différents champs juridiques, allant du principe de précaution jusqu'au droit des brevets d'invention en passant par le droit applicable aux substances chimiques.

Science and Technology have been imagined, encouraged, and conceived by and for Society as a whole. All such activities must logically be integrated within the existing normalized frameworks 2 , as far as applicable. However the existing legal framework must be re-evaluated in view of any new aspects which are specific to new objects, new activities, and/or any new applications.

Nanosciences and Nanotechnologies (N&N) of course must obey this basic rule, even more so in that the more or less arbitrary 3 grouping of N&N according to a mere physical dimension (i.e. the order of nanometers) considerably broadens the scope of the rules of law which are or become pertinent and applicable.

As N&N are by nature transversal, interdisciplinary and innovating, they are also potentially present in all industrial sectors, thus the emergence of N&N shakes up the established players in each stage of the life cycle of N&N, in terms of their practices in research and development, as well as in the ways of interacting together, such as mutual information exchange, throughout the phases of manufacturing and consumption of goods.

Among other normative regimes, the role of law is to take account of these questions, as well as the accompanying social rules such as ethics, deontology, technical standards, or any other more or less structured standards.

Interpretation in case law shall follow, offering a uniquely privileged point of view upon the evolution of Society itself, which confers legitimacy to the evolving applicable legal and social standards. So then what can be said about law in the nanoworld ?

I-Nano law ? Misleading clues and the chosen method

What if, as pointed out by Marie-Angele Hermitte4 , "the Spirit of Law remodels the reality supplied at input, by forcing objects from other worlds to fit into the logic of its categories and associated topographies." How is this world interpreted within our French and European legal system ?

In order to examine and choose among many possible replies to such a question, first we suggest eliminating any research dealing with purely semantic questions. Some paths lead to dead ends, which is without a doubt the case of the former French proposal to create a specific legal regime for nanoparticles and nanomaterials discussed under (a). Other paths worthy of further investigation include taking into account the challenges represented by N&N in a legal context in order to analyze the replies offered (discussed under b). a) "unknown at this address5 " Do we find any legal texts dedicated to our specific field of objects, science, technologies of N&N ? Until recently, the answer was NO.

In French law, this has changed since the first "Grenelle" laws6 which specifically mentioned N&N twice, with an obligation to declare any substance in "a nanoparticle state"7 This law consecrates "nano" as a legal term.

However does the creation of this new legal term reflect in itself N&N as redefined in applicable law ? Of course not. It is both impossible to assert that these legal articles constitute the applicable law in N&N and absurd to pretend that N&N escaped any and all legal dispositions before the existence of these new legal dispositions.

It becomes obvious from these first specifically applicable articles of law how awkward it is for the public power to apprehend "nano" objects. Confronted with the limits of a vocabulary which has been widely used within the framework of their public policies in science and technology, especially in funding of such; the tendency has been to consecrate the use of "neologisms" These obscure vocabularies for non-experts, add an additional layer of linguistic complexity, as well as leading to an additional and unfortunate lack of legal certainty.

Finally, the most visible event in French law8 has been the creation of a totally new category of nanoparticle substances, whose exact nature remains to be defined.

The current result is that the legal existence, and/or legal significance of N&N is fleeting and floating, piecemeal and fragmented. That is an understatement. Furthermore, their political existence has not by any means been clarified. 6/3/2011 3:50 PM 3/13

A first intermediate conclusion is, for several reasons, that the legislator has indeed created a new legal concept, an object whose indeterminate boundaries and content cover only a very limited portion of the N&N constellation of potential problems.

Although there is apparent will and effort to have as broad a reply as possible to the specific question of the potential impact of nanoparticles upon health and the environment, the legislator has from the outset been limited in action by the first premises of the procedure underlying the action.

In particular, the Requirement issued from the Grenelle environmental conference9 to "prevent or anticipate, in the manner of an expert evaluation, with intelligence gathering and vigilance with respect to the risks related to products, techniques, and modifications to the environment while accompanying innovation",10 was the result of debates organized between the interested actors in the above mentioned conference.

This first Grenelle requirement was associated with the expression of the need for a regulatory framework concerning the evaluation and regulation of products incorporating nanomaterials, and the creation of a consultative body representing the different working groups of the Grenelle conference to follow-up of the various actions adopted with regards to nanotechnologies.

A careful reading of the documents published in the following stages of the Grenelle conference leading up to the vote of the two laws [START_REF]Summaries of working groups, general round tables[END_REF] allows the attentive reader to appreciate the evolution of the initial postulates. In particular, public participation in the decision process was greatly modified, as was the evolution of the requested regulatory framework. At first foreseen only concerning nanomaterials, evolved to nanoparticles and nanomaterials, then finally "substance(s) in a state comprising nanoparticles, whether alone or contained in mixtures in which they are not bound, or materials which may release such substances under normal conditions or reasonably predictable conditions of use" was voted on in the law of July 2010.

Still, even after the legislative texts resulting from such a procedure, it is difficult to pretend that all within the vast fields potentially concerned by N&N is satisfactorily regulated.

b) "the uncomfortable zone". Reflections on a framework in construction.

Yes, in fact, the extent of fields potentially included in N&N is enormous, depending on the definition. The concept of N&N has been built up in the 1990's by scientists and politicians in a manner which englobes whatever is convenient for political or funding purposes.

N&N has become a password, [START_REF]The vagueness of the word has been denounced many times throughout the debates organized by the French National Commission on Public Debates (CNDP) during winter 2009-2010[END_REF] allowing scientists and politicians to reorient their priorities in science and technology, but leaving the future open for adjustments of the definitions.

6/3/2011 3:50 PM 4/13

We do have a sort of definition from the EC 2004 13 along with the contextual elements which are put forth in the first paragraph(s) of the action plan 14 published in 2005, confirming this observation.

In view of such a variety of scientific and technological activities, and the diversity of possible applications, it seems at first view that several fields of law are potentially concerned with the emerging N&N, including but not limited to: laws concerning public or private research, patent law, laws in the workplace, environmental law, tax law, forum shopping, and commercial law, in particular as it concerns end users (or consumers). We also observe that European Community law contributes to a multitude of legislations which go beyond and mix different disciplines and branches of law. For example, cosmetics, pharmacy, foodstuffs, and different chemical substances, biotechnologies, etc. are all equally concerned by nanotech applications. 15 On the European level, it is in fact the different sectorial legislations which were the first to address the specific nature of N&N. 16 Thus in order to understand and evaluate the relevant legal translation of the N&N world, we must investigate not only numerous texts, but also different branches of law and various legal disciplines. To undertake such a program, even if non-exhaustive and obviously incomplete, one needs a clearly defined motus operandi. A few different methods come to mind.

One method which is successfully used within the project NanoNorma, 17 follows the analysis of the legal dispositions available "from cradle to grave", throughout the life cycle of nanoproducts. Starting in a research lab, then finally ending up in the environment, sometimes as waste products, this project attempts to address each step in the cycle and also covers the relevant legal framework applicable to each.

In the present paper we take a different approach, in which we bring together the different legal instruments available according to the effects which the emerging N&N have on their application in this new field.

II-The reception of "nanos" by the law. Chosen effects.

From such a point of view, we see that according to the different scientific or technology field concerned, the effects in the legal world shall react on a scale which varies from retouching pre-existing questions and corresponding texts to a profound total questioning of the principles and methods employed, which can lead to confusion even in recently updated fields of law. We submit that in spite of overlapping effects, or totally 13 Communication COM(2004) 338 : "Towards a European Strategy in favor of nanotechnologies" 14 Communication "Nanosciences and Nanotechnologies : an action plan for Europe 2005-2009" COM (2005)243 "Nanosciences and nanotechnologies (N&N) are new approaches to research and development (R&D) that concern the study of phenomena and manipulation of materials at atomic, molecular and macromolecular scales, where properties differ significantly from those at a larger scale. Advances across a wide range of sectors are being enabled through R&D and innovation in N&N. These advances can address the needs of citizens and contribute to the Union's competitiveness and sustainable development objectives and many of its policies including public health, employment and occupational safety and health, information society, energy, transport, security and space." 15 For developments illustrating this effect of community law, in the particular case of consumer protection, cf. in French : Sylvie PUGNET, « La réglementation de la sécurité des produits : un risque pour l'entreprise », Contrats Concurrence Consommation n° 10, oct.2009, étude 10. cf. Also SPINOSOI, C.J. (2002) : "La structure du droit français," RIDC 2002,, v. 54, No. 2, esp. p. 271. 16 Cf. Regulation (CE) no. 1223/2009 of 30 Nov. Relating to cosmetic products. 17 This study is currently underway within the framework of the project Nanonorma "From innovation to use : which normative frameword for nano-objects ??": (http://www,nanonorma.org/), funded by the French National Agency for Research in the chapter National Program for Nanosciences and Nanotechnologies (No. ANR-08-NANO-001-01).

1. "Foreign Body "18 : Branches of Law in situations of Uncertainty.

In fact, existing law is not ignorant of the uncertainty problems. 19 We even have a recent amendment 20 to the French Constitution named the principle of precaution, which specifically addresses unspecified risks. Such considerations were not lacking in the French legal system before the Environmental Charter of Grenelle which cites an earlier "Loi Barnier", 1995 (cf. Art. L. 110), and EC law which has elevated precaution to status of a general principle of EC law. Such considerations, expressed via an international environmental law 21 were quite naturally extended to sanitary risks, 22 even though the existence of such a text and conditions of putting it into practice remain under critical discussion. 23 Of course the "principle of precaution" remains the fundamental text in the field of N&N, particularly for liability and risks of damages related to manufacture, use, etc. of nanoparticles and nanomaterials. Public authorities have not brushed this aside, and numerous communications 24 and recommendations 25 as well as opinions emanating from agencies or expert committees 26 are dedicated to the development of N&N in Europe since 2004.

As the principle of precaution implies the installation and use of methods of risk evaluation and mitigation, in addition to the adoption of temporary measures proportional to said risks in order to avoid a potential threat or damages, also push for financial support of research into risks associated with nanomaterials to health and the environment.

6/3/2011 3:50 PM 6/13

We remind the reader only in passing of the difficulty of concrete application of such lofty principles. The reader is referred to the written records of the public debates27 , concerning the development and the regulation of nanotechnologies, organized by the CNDP (Commission Nationale du Débat Public) between October 2009 and February 2010 under the auspices of the French Government.

In French law, the principle of precaution has extended its field of application concerning N&N. It encompasses the activities of public authorities, including their activities as employers, thus intruding into the sphere of influence of law of the workplace, and is particularly strict concerning HSE (Health, Safety and Environment) issues. Conceived at the outset to take account of the uncertainty of risk of damages, the principle of precaution was naturally brought embraced by the defenders of health in the workplace. Workers in N&N are exposed by their employers to potential consequences of their activities in contact with nanoparticles or nanomaterials. What protective measures should be put into place by the employers ?

Such a question is all the more vital in that the health risks for employees in contact with N&N are very uncertain at this point in time, even if new data is being constantly accumulated. 28 In such an en environment, application of the principle of precaution goes beyond its initial goal, which was conceived as a simple, additional protection extending to unkown risks, but now appears to be most pertinent and perhaps of utmost importance for workplace risks.

Whether in the workplace, public health, or environmental fields, the hypothesis may be put forth for the treatment of such questions arising from nanoparticles or nanomaterials.

In a first hypothesis, the risks associated with the products are known or at least the risks probabilities lend themselves to reasonable conjecture. For example, insurance might work. In such a scenario, simple prevention according to normal workplace law applies and should be sufficient.

However, in the second hypothesis, infinitely more likely in the current state of scientific knowledge of nanomaterials, the risks are largely unknown, thus the principle of precaution is the preferred reference.

A perceptible interpretation as above is noticeable in various position statements concerning nanomaterials in the workplace. In 2009, the French MEDEF29 issued a statement30 : "enterprises wishing to innovate using nanotechnologies should take appropriate preventative measures and precautions which take into account the level of uncertainty of our current knowledge".

In fact, the MEDEF explicitly took the position of the Committee of Prevention and Precaution in 2006, which stated: "In the case that toxicology measurements cannot establish tolerable limits of exposition to a product, the principle ALARA (As Low As Reasonably Allowable) should be applied".

The ALARA takes into account that the workers should be protected "without waiting for proof of toxicity or not of different nanoparticles". But also with a proportional character for putting such precautionary measures into effect. 6/3/2011 3:50 PM 7/13

However, this interpretation in French practice comes up against the general principle for workplace hazards. In France, the Code de Travail says that "the employer takes the necessary measures to ensure the security and to protect the physical and mental health of workers. These measures include : 1) actions to prevent professional risks ; 2) actions of information and training ; and 3) the installation of adapted organization and means. The employer watches over the adaptation of these measures in order to take into account evolving circumstances as well as to improve existing situations." This employers' obligation has been interpreted since 2002 in case law concerning asbestos as an obligation of result. 31 So what is the situation in the presence of a risk which the employer might be aware of as a possibility, but which in the current state of scientific knowledge is still uncertain? This type of risk is known to exist in the field of N&N. Is the mere probability of an uncertain risk perhaps enough to engage the employers' responsibility?

If a negative reply to this question is put forth in the fields of civil liability or administrative liability, should this negative reply have any repercussion on the extent of the measures of prevention which the employer is required to put into place in the workplace, and in particular the mention of a potential risk within the only specific document foreseen by the articles R.4121 and following of the Code de Travail?

In case of fact, is uncertainty a sufficient condition to exclude the application of the principle of prevention? Or should this uncertainty lead to even more strict measures of the workplace law, wherein the employer is also required to have an increasing responsibility of ongoing surveillance of the evolution of the scientific state of knowledge? Such a solution has been put forth in the work of the AFSSET in 2008, 32 as well those of the Haut Conseil pour la Santé Publique in 2009. 33 Some recent case law interpretations 34 of the principle of precaution have gone in this direction, that the employees can reasonably invoke legitimate fears, even in the absence of any scientifically established relation of cause and effect, that such products may provoke effects which allow them to cease working. 35 Where should we place the pointer in the interpretation of a principle imported from a different branch of law ? We can easily see from this example that the exercise is perilous. The interpretation given to the principle of precaution in the field where it originated may lead to contrasting results, having for effect reduced protection of worker safety and health, or 31 Soc., 28 février 2002, pourvois n° 00-13.172, n° 99-18.389, n° 99-17.201 : « En vertu du contrat de travail le liant à son salarié, l'employeur est tenu envers celui-ci d'une obligation de sécurité de résultat, notamment en ce qui concerne les maladies professionnelles contractées par ce salarié du fait des produits fabriqués ou utilisés par l'entreprise ; le manquement à cette obligation a le caractère d'une faute inexcusable, au sens de l'article L.452-1 du Code de la sécurité sociale, lorsque l'employeur avait ou aurait dû avoir conscience du danger auquel était exposé le salarié, et qu'il n'a pas pris les mesures nécessaires pour l'en préserver ». roughly translated as follows : « by virtue of the contract binding him with the employee, the employer is obligated by the security of the result to his employee, in particular as concerns professional illnesses which are the result of the employee being exposed to products manufactured or used by the enterprise ; if this mandatory result is not obtained, it is a non-excusable fault of the employer, within the meaning of article L. 452-1 of the Code of Social Security, insofar as the employer had or should have had awareness of the danger to which the employer was exposed, and the employer did not take the necessary measures to protect his employee from said danger. » 32 AFSSET, Opinion on « Nanomatériaux et sécurité au travail », July 2008, http://www.afsset.fr/index.php?pageid=1686&parentid=229&ongletlstid=3929#content (site consulted on 21 Octobre 2010). 33 Cf. Opinion of the Haut Conseil de la santé publique « la sécurité des travailleurs lors de l'exposition aux nanotubes de carbone » of 7 January 2009, at the following addresse : http://www.hcsp.fr/docspdf/avisrapports/hcspa20090107_ExpNanoCarbone.pdf 34 Cf. Cour d'Appel de Versailles, 14 ème ch., 4 February 2009, and commentary of Ph. Stoffel-Munck, « La théorie des troubles du voisinage à l'épreuve du principe de précaution : observations sur le cas des antennes relais », or "the theory of good neighbor policy challenged by the principle of precaution : observations on the case of relay antennas" D. 2009, n°42, chron. p. 2917, among others. 35 on the contrary, reinforcement to such a degree that any N&N commercial activities would become illusory.

A similar analysis could be undertaken in other legal fields concerned with N&N, for example insurances, whose main concerns are the uncertainty of the risks associated with N&N activities, which pushes insurers to develop a lege feranda reading of liability law.

But this is not the only effect of these emerging technologies on the existing law. In other fields as well, the principles of application of legal texts are called into question, as witnessed by the recent skirmishes between the European Commission and Parliament concerning the question of risks related to nanotechnology.

"Elementary Particles" of Best Practices of Risk Management.

In a certain number of fields including for example the regulation concerning chemical products, the legal standard may be evaluated both from the viewpoint of the principles as expressed and embodied, as well as the standards and technical documents which are necessary in order for putting them into practice.

Such standards and technical documents are expressly included in a "new" approach put forth since the mid 1980's by the European Commission for the construction of the European Common Market. 36 In the matter of nanoparticles and nanomaterials, as put forth by Nathalie Herve-Fournereau : "In contrast with a totalitarian coercive approach, the public authorities prefer to make use of a more instrumental approach which is both integrated and open to evolution, conjugating the use of voluntary approaches, adoption of recommendations, and guides of best practices and adaptation", 37 rather than the elaboration of a specific legislation.

This approach has manifested itself since 2004, when the European Commission stated that in view of the fact that "globally, one may conclude that the current legislation covers in a broad sense the risks inherent to nanomaterials and that these risks may be managed within the existing legal framework. [...] [However] The implementation documents, in particular concerning risk evaluation, and which have been adopted with respect of and in view of the current legislation, must be revised in such a manner that they will guarantee to have duly taken into account the risks of nanomaterials and exploit the available data to the best manner possible." 38 It thus seems possible, in light of the efforts of the European Commission, to assert that the elementary particles necessary from a legal point of view for risk management of nanomaterials are simply the technical documents which offer an explanation of the application of existing legislation, apparently without any need to investigate further the content of that existing legislation. reinforced via an improvement in the application of existing legislation, in view of the fact that without data and appropriate methods for evaluation of nanomaterials, the Commission services are incapable of treating these risks." 39 The explanation of this contradiction in the interpretation of the text is found, in part, in the very heart of the pertinent regulatory disposition. This is the case in particular for the REACH [START_REF]concerning registration, evaluation and authorization of chemical substances, and restrictions applicable to these substances (REACH)[END_REF] regulation, which seeks to establish a high level of protection for human health and environment while ensuring the free circulation of chemical substances within the Common Market, by regulating their fabrication, distribution and marketing, and their use. It is fair to point out that this regulation innovates through abolishing the long-established distinction between existing substances and new ones, such that all chemical substances are treated equally.

This interpretation of Community texts leads to a constant problem of a strong opposition from the European Parliament and its various commissions. The EP is "not in fact inclined, in the absence of community law, to support any disposition which specifically designates nanomaterials, declarations of the Commission stating that a) the current valid legislation covers in principle the risks associated with this type of material ; b) nor the idea that protection of health, security, and environmental concerns should be for the most part

Another innovation is "the principle that it is the responsibility of fabricants, importers, and downstream users to be vigilant that they make, market, or use substances which are not dangerous for human health or environment." 41 The limits of the regulation as concerns apprehension about nanoparticles and nanomaterials have been widely commented upon. According to Patrick Thieffrey 42 the most obvious is that the registry is mandatory in the text only for chemical substances which are fabricated or imported in quantities greater than one ton per year and per person (fabricant/importer).

Without going into further detail on the dispositions of the regulation (we refer the avid reader to other works [START_REF] Thieffry | La régulation des nanotechnologies : des normes techniques aux normes tout court ou la nébuleuse normative[END_REF] ), it is easy to take this first argument, often put forth to illustrate the problem of adapting the existing legislation to the specificities of nanoparticles and nanomaterials, to illustrate the difficulties which the legal system must confront in its apprehension of the nanoworld.

It is indeed sufficient to realize that the reglementary threshold of one ton per year and per operator (producer or importer) shall be difficult to reach on the European market for nanoparticles and nanomaterials, with maybe rare exceptions, and which may be easily circumvented by accounting tactics between actors in the sector. Only activities above the one ton threshold are of concern, according to a simple principle: the more the product is massively introduced in the marketplace, the greater the risks, and the details in the registry file depend on such considerations. In theory, greater risk in quantity requires better knowledge of those risks. On the other hand, the Commission feels that below a certain threshold, the obligation of registry would render the system impractical. [START_REF]final -Proposition for a regulation of the EP and Council concerning registration, évaluation and authorization of chemical substances, and restrictions applicable to these substances[END_REF] Such a statement, from our point of view, only hides the magnitude of modifications necessary to this text if one desires that it should correctly take account of the availability of nanoparticles and nanomaterials in the marketplace. In this case it is not because of the small quantities of fabrication or importation that the law has a problem to deal with them, it is because the units 6/3/2011 3:50 PM 10/13 of measure used to determine the threshold of applicability are inappropriate. The effects of such products are related to the distribution of particle size or the materials of which they are composed, rather than their total mass, as pointed out by the experts of SCENIHR. 45 Simply lowering the threshold is not enough, a complete review of the implementation of the legislation is clearly necessary to take account of the relevant characteristics so that REACH has some sense with respect to nanomaterials.

It is quite evident that the text is not adapted by an overview of the technical documents necessary as a foundation for the practical implementation of the law. We observe that above a certain threshold, the entity is required to supply, along with its filing request, toxicology and ecolo-toxicology research and results, as far as known, plus a report on the chemical security.

These requirements seem irrelevant in relation to nanoparticles and nanomaterials in view of the lack of standardisation of technical means adapted to a risk evaluation for these products. This is can be witnessed when observing the working groups of the OECD and ISO as they try to come to a consensus on technical parameters. There is a natural flow-on from the uncertainties in regards to technical parameters and their present and future evolution, to the legal texts which are based on the presumption of the founding principles.

This situation requires a deep and fundamental questioning of the established order which has been built on categories adapted to chemical substances, but which shall be brought into play in the new fields of nanomaterials and nanoparticles.

Behind the scenes, there are major interests (often hidden as usual) among the interested parties concerning the method employed to accompany the evolution of the standards framework, as well as the room allowed for the expression of diverging opinions. In this case, it's not only a concept imported from a different legislative branch which is in question, but the way in which the legal principles have been thought out (and not only their implementation) within a coherent legal framework.

Other sectorial legislations, in particular the authorizations for introducing a new medical product to market, give a perspective wherein N&N raises fundamental questions about the function of the legal system.

We shall conclude our rapid overview of the current legal translation of the nanoworld with the last hypothesis, concerning a deeper questioning of the legal modes chosen to reply to the questions formerly arising from the emerging technologies of the past.

"Lost Land" From patents to nanoelectronics .

In two particular legal fields, N&N force the accent on questions which have arisen concerning former technologies, to such a point that the initial economy of these fields seems lost. We refer to law concerning personal data 46 and patent law.

In the first case, nanoelectronics allow the manufacture of powerful and reliable components at vanishing unit production costs. The economies of mass production allow the 45 Acronym for « Scientific Committee on Emerging and Newly Identified Health Risks ». The European Commission has asked this committee of experts to formulate a scientific definition of nanomaterials in order to allow the drafting and implementation of a regulation. The work is still in progress at the time of this writing. 46 realization and implementation of object-based internet, NFC 47 technology, and RFID 48 which will once again push the limits of the legal framework for the protection of personal data. 49 Our laws imply information, acceptance of the persons whose data are treated, and a well-defined purpose of those treatments. Such laws are not appropriate for invisible objects which are potentially everlasting 50 . While the attitude about traces left by individuals has evolved during preceding years, and has been addressed by many works, a more or less conscious behavior of persons is generally assumed, for instance for Internet users or biometry. In contrast, the features of objects made possible by nanoelectronics are such that communication may become independent of those who communicate. Objects are now communicating for us… and about us.

The CNIL, French commission created in 1978 by the "loi Informatique et Liberté", reacted as early as 2003 by the publication of a remarkable communication 51 . Because of the danger of RFID concerning personal data protection, it recommends to treat RFID as data subject to the French law, implying that their deactivation should be easily possible. The various contributions of the CNIL 52 to the public debate on nanotechnologies organized in France by the CNDP nevertheless show that its wish has not been completely fulfilled.

At the European level, the trend does not clearly favourable the general application of the legislation on personal data to electronic devices. The European Commission, though concerned with European competitive ability, clearly expressed in 2007 53 , and even more in 2009 54 , the will to find for nanotechnologies "a legal framework that affords citizens effective safeguards for fundamental values, health, data protection and privacy". Concerning this issue, as recalled by the "Article 29 Working Party" 55 , the legislation can only be adapted to new technologies at the cost of an intense reflection on the necessary interaction between law and technique. The law alone cannot solve the problems amplified by nanotechnologies. Nevertheless, a deep revision of the law is necessary. Unfortunately, the approach which has been suggested fails to take technological evolution into account correctly. An example is the recommendation made in 2009 by the European Commission who suggested co-regulation together with the Industry. If not correctly amended, the law may in the near future be deprived of any concrete effect 56 . 47 Acronym for Near Field Communication, a technique which allows information exchange without contact. 48 Acronym for Radio Frequency IDentification, another technique which allows information exchange without contact. 49 In France, the "loi Informatique et Liberté", (law n°78-17 of January 6, 1978) concerning computing, data bases and liberties, attempts to take into account technological innovations and new computing uses and technologies. It has been modified 6 august 2004. 50 RFID can operate without battery, as the energy is provided by the electromagnetic field of the reader. 51 Communication of Philippe Lemoine on Radio-Identification (Radio-Tags or RFIds). 52 The position of the CNIL is summarized in its " cahier d'acteur", a booklet written by an ensemble of stakeholders expressing their views about a given topic (research institution, non governmental institutions, trade unions, citizens) 53 The effect which N&N have in the field of patents is correlated to a number of factors which may be summarized as follows: most R&D in N&N is performed in academic [START_REF]Nanotechnology: an overview based on indicators and statistics[END_REF] or institutional laboratories, this R&D is recent, 58 cutting edge, costly [START_REF] Lacour | Le droit des brevets d'invention à l'épreuve des nanotechnologies[END_REF] and often interdisciplinary, it blurs the borders between science and technology, and last but not least, may have applications in numerous industrial sectors. [START_REF] Cf | The economic development of nanotechnologies -An indicators based analysis, p. 21 and following[END_REF] Each country hopes to recover its investment via patenting, in international competition which has become even more ferocious since these technologies promise to be the industrial revolution of the 21 st century. The research community is thus solicited, as in the past in the fields of biotechnologies, to file patent applications as early as possible. [START_REF] Cf | Capturing Nanotechnology's Current State of Development via Analysis of Patents[END_REF] The patent offices, on the other hand, are confronted with an increasing flow of applications concerning objects which they have great difficulty to apprehend, and which are difficult to situate with respect to a state of the art. The latter is even less stabilized because even the vocabulary developed to name N&N products is in rapid evolution 62 and calls upon knowledge from mixed and various disciplines. 63 The risks inherent in this context have been denounced early on, especially in the USA, and may be formalized via a concept already applied to the anomalies that were introduced to the patent system in the field of biotechnology: the tragedy of the lost commons. [START_REF]The concept of the « tragedy of the anti-commons[END_REF] It would seem in fact that numerous patents have been granted with claims too broad, and whose object does not always present the characteristics of a true patentable invention. The risk of such a situation is to paralyse the innovation capacity of the entire community, which also inevitably will stifle the appearance in the marketplace of products issued from nanotechnologies. [START_REF] Cf | Navigating the Patent Thicket: Cross licences, Patent pools and Standard-Setting[END_REF] This risk, already known to intellectual property specialists, is aggravated here by the fact that capital risk funding is hesitating to support R&D, leading to an increase of patent application filings, which are supposed to prove the viability of the technology to be chosen for exploitation. [START_REF] Kahn | Les brevets sont devenus des armes sophistiquées de guerre commerciale[END_REF] The negative effects of this risk is again multiplied by the generic quality of the concerned technologies, which may further paralyze the corrective forces of the market place which have been observed and commented on in the framework of earlier technologies. [START_REF] Cf | IP in nanomedicine -Perspective from an IP professional in industry[END_REF] 6/3/2011 3:50 PM 13/13

Patent thickets 68 and blocking patents 69 have been counterbalanced until now according to the applicable contractual strategies of different industrial sectors, with little regard to considerations of "social justice". For example, in the field of electronics, we have seen the birth of patent pools 70 and cross-licensing arrangements. Although such arrangements may be criticized in particular with respect to competition law, 71 they do have the advantage to overcome the logjams created by too many blocking patents granted to too many parties concerning commercial products. In the pharmaceutical field, an opposite strategy is applied in a more classical application of the IPR, leading to buyout or liquidation of the weaker competitors under the threat of legal risks. Each industrial sector has developed its proper strategy: each is now confronted with an equally powerful strategy from other actors, giving rise to potential conflicts difficult to resolve. The increasing presence of institutional actors (universities or public research organizations) in this new game complicates the picture by adding to these economic difficulties the risk of seeing the undesirable effects of the perversion of the patent system quickly close off the flow of technology knowledge which may be useful for all. 72 A patent law which is contrary to the promotion of invention, allowing profits to be gained by stifling invention and the sharing of knowledge is nonsense. It's still not too late to become aware of the drifting towards a misuse of patent law of which N&N are becoming a victim. Due to the specificities of N&N in such a context, we are confronted with an opportunity to reconsider the equilibrium between politics and policies of research and innovation which have gradually slipped away from the initial social functions which led to the elaboration of the legal regime.

Conclusion

The legal system may lose efficiency with respect to the upheavals introduced by N&N in relation to its proper frontiers, goals, and concepts. Such an evolution would be detrimental to an effective action concerning sanitary, social, and environmental effects of N&N, and by consequence, detrimental to the very development of N&N. It is indeed a major program to rethink our science and technology policies, our strategies, and our legal replies to questions raised by N&N.

In the end however, the field of law should be enriched and become more noble, at least more than it is at present, by the "unfortunate invention" of nanoparticle substances. 68 The image of patent thickets involves the hypothesis of a multitude of patents delivered for similar objects, overlapping partially one another, which is theoretically impossible. 69 Another term well known to patent specialists, consisting of patent applications which are filed with broad claims, in the unique perspective to block the advancement of competitors on a specific market sector. Such patents are also theoretically outlawed but in practice, perfectly legal and frequently used. 70 Patent pools are contractual mechanisms wherein the patent owners pool their patents into a common licensing scheme, which allows exploitation by the members of the pool of all the patents in the pool. 71 Cf. For example F. Violet, Retour sur les embuscades tendues par les « patent trolls », Propriété industrielle n°6, juin 2010, p. 13-« Overview of the traps set by the patent trolls ». 72 To such an extent that one may seriously ask oneself, in particular in the USA, if the universities are not acting as patent trolls. Cf

  Article L. 4131 of the Code du Travail 6

36

  Politique de nouvelle approche entreprise en 1984 et objet d'une résolution du Conseil des communautés européennes en 1985 : Cons. CE, résolution 7 mai 1985 : JOCE n° C 136, 4 juin 1985, p. 1 à 9. 37 N. Hervé-Fournereau, La sécurité sanitaire et environnementale vis-à-vis des nanomatériaux, in Dossier thématique « Droit et nanotechnologies », sous la direction de S. Lacour, Cahiers Droit, Sciences et Technologies n°1, CNRS éditions, p. 57 et s. 38 Communication from the European Commission to the European Parliament, the Council and the European Economic and Social Committee COM(2008) 366 final, Regulatory Aspects of nanomaterials 6

  Cf. for example, S. Lacour, « Ubiquitous computing et Droit. L'exemple de la radio-identification », in « La sécurité de l'individu numérisé », L'Harmattan, Paris, 2009.

  Communication of the European Commission, Radio Frequency Identification (RFID) in Europe: steps towards a policy framework (http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com2007_0096en01.pdf) 54 Commission Recommendation 2009/387/CE of May 12, 2009 on the implementation of privacy and data protection principles in applications supported by radio-frequency identification 55 The Article 29 Data Protection Working Party has been established by Article 29 of Directive 95/46/EC of the European Commission. Internet site http://ec.europa.eu/justice/policies/privacy/workinggroup/index_en.htm 56 The Article 29 Working Party has in July 2010 required to modify the proposal of the European industries in 2009. This testifies the problems to be solved to adapt the current rules in the case of a massive use of RFID. See opinion 5/2010 of July 13, 2010, Internet site http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp175_en.pdf.

	6/3/2011	3:50 PM	12/13

  . M. A Lemley, Are Unviersities Patent Trolls ? Stanford Public Law Working Paper n° 980776.

Marie Angele Hermitte, "Le droit est un autre monde" Enquête, les objets du droit, 1999. May be found at http://enquete.revues.org/document1553.html, consulted on 07 Octobre 2010.

We have borrowed the subtitles of the different parts of this paper from the following authors, who are cordially thanked in advance: Kressmann Taylor, Jonathan Franzen, Didier Van Cauwelaert, Michel Houellebecq et Pierre Jourde.

Respectively French laws no. 2009-967 of 3 Aug. 2009 on the programming relative to the implementation of the Grenelle environmental law, and law no. 2010-788 of 12 July 2010 on the national engagement in favor of the environment.

Substances in a nanoparticle state are mentioned in the article of the "programmation" law and in article 185 of the law for the national engagement in favor of the environment.

Concerning the idea that the normative register of N&N is indeed present, but sometimes less visible, see "La régulation des nanotechnologies. Clair-obscur normatif" under the direction of S. Lacour, published by Editions Larcier, 2010.

Procedure launched on 6 July 2007, bringing together governmental and civil representatives to define a roadmap in favor of ecology and sustainable development. Six working groups were formed with representatives from five colleges who were to represent all actors of sustainable development: representatives of nongovernmental organisations and of French government, employers and employees, and territorial collectivities.

 10 The working group no. 3, entitled "Creating a health-friendly environment", submitted its report on 27 Sept. 2007.

As a form of hommage, our chapter titles are borrowed from Kressmann Taylor, Jonathan Franzen, Didier van Cauwelaert, Michel Houellebecq, and Pierre Jourde. Our thanks to the authors...

cf. in French : S. Desmoulin -Canselier and S. Lacour, " Le droit à l'épreuve des nanotechnologies (ou les nanotechnologies à l'épreuve du droit)" in Les Nanosciences. 4. « Nanotoxicologie et nano-éthique » directed by M. Lahmani, F. Marano, and Ph. Houdy, Editions Belin,

 20 In application of the article 5 of the Charter for the environment promulgated on 1 March 2005 and introduced into the preamble of the constitution of 1958, "when damage is realized to potentially affect the environment in a serious and irreversible manner, even if uncertain within the state of scientific knowledge, the public authorities oversee, by the application of the principle of precaution within their fields of attribution, the implementation of procedures for evaluation of risks and the adoption of temporary measures proportional to the perceived risks in order to prevent the damage from occurring.21 See the decisions : TPICE, 26 November 2002, affair Artegodan : T-74/00, point 184 ; TPICE, 11 September 2002, affair Alapharma : T-70/99, point 171.22 Cf. Ch. Noiville, « Science, décision, action: trois remarques à propos du principe de précaution », Petites Affiches, 1 er -2 novembre 2004, n° 218-219, p. 10.23 Among the most well known are perhaps those of François Ewald, founder of the Observatory of the Principle of Precaution, and of Maurice Tubiana, member of the French Academy of Sciences. See also, F. Ewald, "Le principe de précaution oblige à exagérer la menace", Le Monde, 9 janvier 2010 or again M. Tubiana, in « Le principe de précaution : bilan de son application quatre ans après sa constitutionnalisation », Minutes of the public audition of 1st October 2009 organised by the French OPECST. (Office Parlementaire d'Evaluation des Choix Scientifiques et Technologiques).24 Cf. in particular the European Commission Communication « Reglementary Aspects of nanomatérials » COM (2008) 366.25 Recommendation 2008/345/CE of the European Commission concerning best practices for responsible research in nanosciences and nanotechnologies of 7 February 2008.26 In France, the Committee for the Prevention and Precaution was the first to be questioned on N&N, Cf. the Opinion of the Committee for the Prevention and Precaution, Ministry of Ecology and Sustainable Development, May 2006, « Nanotechnologies, nanoparticles, which dangers, which risks ? ». This first text was followed by several other opinions and recommendations, among which those of the AFFSET (Agence Francaise de Sécurité Sanitaire de l' Environnement et du Travail) in2006, 2008 and 2010.

The notes of the actors and the minutes of the debates, as well as the conclusions published by the Commission Particulière of the Public Debate may still be available on-line at the following address : http://www.debatpublic-nano.org

We refer the interested reader to the article of Eric Gaffet in this volume for further development of this subject.

« Mouvement Des Entreprises de France ». Organization bringing together the Directors of the main French enterprises.

http://www.debatpublic-nano.org

European Parliament. Résolution of 24 April 2009 on the Regulatory aspects of nanomaterials.