Wednesday, September 17, 2014
This is the fourth in a series of posts that are part of a virtual symposium on the new book by Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure. Biographies for the first week's contributors can be found here. The authors' introduction to the symposium can be found here.
Robert Hillman is the Edwin H. Woodruff Professor of Law at Cornell University.
Omri Ben-Shahar and Carl E. Schneider have written an important book. In the first two parts of their book, they usefully gather and describe the myriad shortcomings of what they call "mandated disclosure" as a regulatory tool and helpfully explain why disclosure very often fails. Following up on this analysis, in Part III Omri and Carl argue that mandated disclosure cannot be saved and "lawmakers should stop using it." (13) The book certainly should give lawmakers pause before adopting new disclosure strategies.
Omri and I have had many discussions on the merits or lack thereof of disclosure and we always agree to disagree. Still, always interested in a robust exchange of ideas, Omri kindly suggested me as one of the reviewers of the book for this blog. So it should be no surprise that what follows are some counterarguments that respond to assertions made in the book. I have already published my views of the importance of disclosure distinct from the question of whether anybody reads or understands disclosures, including for efficiency, autonomy, corrective justice, and moral reasons. See Robert A. Hillman and Maureen O'Rourke, Defending Disclosure in Software Licensing, 78 U. Chi. L. Rev. 95 (2011). So I will not duplicate those arguments here.
By way of introduction, although I agree with the authors that disclosure is far from a panacea for the various problems it is designed to treat, I fear that these two prominent scholars, perhaps in their zeal to make their case, have lost sight of the usefulness of disclosure in at least some circumstances and as at least one component of regulation to even the playing field between what they call disclosers and disclosees. Perhaps more worrisome, in my view, they engage in serious overkill in their discussion of the so-called harms of disclosure. In addition, although they leave little room for the use of disclosure--"[M]andated disclosure is so indiscriminately used with such unrealistic expectations and such unhappy results that it should be presumptively barred." (183)-- they are quite thin on how to rebut the presumption and what they propose as alternatives. But before lawmakers largely abandon disclosure as a strategy, one would think they need to contemplate what will replace it.
I also worry that Omri and Carl's efforts to go for the jugular on disclosure causes them to lump all disclosures, whether disclosure of contract terms, medical releases, Miranda rights, food labels, campus crime reports, etc. etc., as falling into the same unproductive trap. A more nuanced approach might have led the authors to see the wisdom of at least some disclosure strategies. For example, are they really advocating that vendors of software should not be required to disclose the terms of their licenses to licensees? "Sorry, Ms. Consumer, even though your software doesn't work one of our terms that we didn't have to show you is that you were licensing our software as is." (On page 118 the reader finds a nod to the possibility that some disclosures might work: "We have never argued * * * that all disclosures fail." But this admonition is buried in a landslide of condemnation contained in the book.)
In my limited space, I want to focus on Chapter 11's treatment of the harms of disclosure. I should reveal (after all, this is a piece about disclosure) that Omri and Carl open this chapter with a quote from Maureen O'Rourke and me to represent the folly of what they call "disclosurites". We argued that disclosure is one necessary tool for regulating software contracts and wrote that "disclosure is * * *inexpensive and, at worst, harmless." Hillman and O'Rourke, Defending Disclosure, supra. (Maureen and I, as Reporters for the American Law Institute's "Principles of the Law of Software Contracts," heard repeatedly from software vendors and tech people that disclosing end user licensing agreements on the Internet would be relatively costless.) Omri and Carl use our quotation as a taking off point for the proposition that disclosure causes lots of harm. I will also comment on Chapter 12's discussion of alternatives to disclosure.
Chapter 11: "At Worst, Harmless"
In what follows, I will comment on many of the "harms" of disclosure Omri and Carl present. My goal is to present a more balanced view on whether disclosure is harmful, not to convince the reader one way or the other on the merits of disclosure in these settings. Many of the issues demand a thorough empirical investigation before one can reach any conclusion.
"[W]e all spend uncounted hours dealing with disclosures, sometimes even reading them. * * * [A]ggregated, 'costless' is not the word that comes to mind." (170) But one of the authors' principal complaints about disclosure in many settings is that no one reads the boilerplate. So it is hard to see how licensees are spending "uncounted hours dealing" with disclosures. Omri and Carl devote several pages to a "Parable of Chris Consumer" (95-100) to point out the accumulation of disclosures people confront. But to illustrate the harm wrought by the quantity of disclosures, they portray that Chris is reading them, which they acknowledge is "the reductio ad absurdum of the accumulation problem." (101)
"Disclosure also undercuts against unconscionable contracts * * *. [H]ow can you claim surprise if you got a PROMINENT DISCLOSURE in ALLCAPS and initialed it." (172) The authors here invoke a warning I presented in my article, "Online Boilerplate: Would Mandatory Disclosure of E-Terms Backfire," 104 Mich. L. Rev. 837 (2006). But my conclusion was that the online environment affords consumers and especially watchdog groups easy access to terms (assuming they must be disclosed) who can "spread the word about unreasonable terms. * * * Even if disclosure backfires in the short term perhaps eventually the word will get out about a business's unsavory terms." 104 Mich. at 853, 856. So market forces, in conjunction with disclosure, may create a positive result. In fact, as a general matter, I don't think Omri and Carl sufficiently contemplate how the new world of digital communication might affect disclosure laws for the better.
"[S]ome commentators believe police use Miranda to inveigle suspects into seeing the police as their friends." (173) This seems rather weak evidence to build a case against the Miranda warnings. Relatedly, Omri and Carl also venture that Web privacy notices "soothe consumers' privacy worries and builds trust in the firm * * *." (173) The authors ignore the consumer uproar when Google and Facebook tried to enhance their right to collect personal data.
Omri and Carl assert that the Principles of the Law of Software Contracts' strategy of disclosure would mean that "the consumer would lose the right to withdraw from the contract" after opening the box and reading the terms. (174) But after opening the box, licensees are even less likely to read the terms no less decide to return the software based on the content of the terms. Further, Maureen and I heard lots of testimony concerning the difficulty of returning software after a licensee opens the box. So the loss of this right, which is far from certain under the software contract principles, seems inconsequential.
"More information is not better if it is wrong, or misleadingly incomplete, or irrelevant * * *." (175) This is true, of course, but the problem calls for a careful examination of which disclosures actually suffer from these infirmities, not for a blunderbuss approach of doing away with all disclosures. For example, the information contained in the disclosure of an end user licensing agreement is not "wrong, or misleadingly incomplete," and it is highly relevant.
"[M]arginally useful medical disclosures can drive out necessary but unmandated information." (175) The authors assert that because patients receive medical disclosures they lose sight of more important information concerning, for example, how to manage a chronic illness. I am doubtful.
Sharing a few anecdotes, the authors rail against disclosure because it allows some consumer buyers and home purchasers to avoid transactions by invoking "disclosure technicalities." (177) Perhaps some consumers do engage in this conduct, but we need to know how many consumers avoid transactions on justifiable grounds because of disclosures.
Chapter 12: "Beyond Disclosurism"
As already mentioned, Omri and Carl have made an important contribution to the disclosure debate by amassing and explaining the many problems of disclosure. I recommend the book for this reason. However, they seem to believe that their case is so strong that they do not have to worry too much about alternatives. In fact, they call alternatives to disclosure "the wrong—indeed a bad—question." (183) I am uncomfortable with that conclusion.
Notwithstanding the 'bad question," Omri and Carl present some alternatives to mandated disclosure. For example, the authors discuss the potential of intermediaries such as consultants and “information aggregators.” (186) However, they are not very enthusiastic about consultants as an option (“consultants can be unreliable” and they are often the disclosers themselves, “lack[ing] the incentive, patience, and reliability to evaluate and warn * * * of the fine print.”) (187) According to the authors, however, “information aggregators,” show more potential. Such aggregators can gather information from “surveys and research, feedback and observation” without the need for mandated disclosure." (187-188) But in my view, the question is wide open as to whether consumers really would be better off by relying on aggregators. The answer is probably that in some circumstances yes, and some no. Further, although some aggregators may not gather their information as the result of mandated disclosure, the authors concede that others do. For example, watchdog groups that monitor the terms of software end user license agreements can collect their information by accessing disclosed terms on the Internet. In response, the authors remark that mandatory disclosure “to eager and sophisticated intermediaries seems much more sensible than the present system.” (188) But at least in the software contract setting, what is the harm in allowing consumers to see the disclosures as well?
In the end, Omri and Carl turn to mandatory terms as a substitute for mandatory disclosure, although they are fully aware of the tradeoffs in pursuing this paternalistic policy. Perhaps ultimately wary of such a solution, the authors retreat by discussing examples in which they believe no regulation is warranted at all. But they supply a curious example. They mention Google and Facebook privacy policies as examples of terms that do not require regulation because users "seem not to feel degraded [by the loss of rights] or even to notice" the terms. (194) But disclosure of the companies' privacy policies combined with the power of the Internet to get the word out about the loss of privacy under the terms caused both companies to change or at least to respond to the criticism of their privacy policies.
"More Than You Wanted to Know" is very successful in inventorying the plethora of mandated disclosure strategies and explaining why they are overused and problematic. The book also usefully contemplates whether "mandatory disclosure can be saved," (118) although the authors conclude too readily that various strategies for doing so are also doomed to failure. In my view, the book would be even more successful if the authors spent more time identifying the kinds of disclosures that might work and considering how to improve current disclosure law, rather than condemning virtually all mandated disclosure.
Tuesday, September 16, 2014
This is the third in a series of posts that are part of a virtual symposium on the new book by Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure. Biographies for the first week's contributors can be found here. The authors' introduction to the symposium can be found here.
Ryan Calo is an assistant professor of law at the University of Washington, where he co-directs the Tech Policy Lab, and an affiliate scholar at the Stanford Center for Internet and Society.
Disclosure Is Dead, Long Live Disclosure!
Omri Ben-Shahar and Carl Schneider are careful, meticulous, and forceful in their critique of mandatory disclosure as a regulatory mechanism. And they are in a basic sense right. Mandatory disclosure really does operate as this “Lorelei, luring lawmakers on to the rocks of regulatory failure” (4). I thoroughly recommend their rich new book, even if one has already read the law review article from which it sprung, The Failure of Mandated Disclosure, 159 U. of Penn. L. Rev. 647 (2011).
What Ben-Shahar and Schneider are not, however, is dreamers. They take rigorous aim at mandatory disclosure in its present form, without really imagining how that form stands to evolve.
More Than You Wanted to Know decimates mandatory disclosure by walking through its long history of failure. Everything the book says about notice is true. But now imagine for a moment a critique of hospitals from the 19th century with a similar structure—call it Worse Than the Cure: The Failure of American Hospitals. Here is the argument: Societies have used hospitals to sequester the sick for millennia. But the sick themselves continue to fare very poorly. We have tried to professionalize the staff; we have looked to specialization and statistics. Nothing works. Hospitals are places that the sick go to die, period.
How strange that feels. Where did our imaginary authors go wrong? Well, as late as the middle of the 1800s, medical professionals did not understand the role of hygiene in propagating disease. It took doctors like Oliver Wendell Holmes—father to the Supreme Court Justice—and the famed Florence Nightingale to popularize the idea that medical professionals wash their hands to prevent the spread of germs. Hospitals still face challenges around germs—staph infection, for instance. But of course modern hygiene practices revolutionized healthcare for the Industrial Age.
Today we live in a gee-whiz-bang world of information, an Information Age. And yet, when it comes to mandatory disclosure, we are using Guttenberg-era technology. The law expects plain, block text akin to how the Bible was printed in the 16th century. What innovation there is occurs at the margins. Ben-Shahar and Schneider discuss nutrition labels, icons, and light personalization as examples of notice innovation (121-37). These alternatives fail, or succeed only marginally; they, too, rely on conveying static information in words or its symbolic equivalent.
What if critics of disclosure today are like the 19th century critics of hospitals? What if we are on the cusp of a revolution in the way governments and firms communicate with citizens and consumers? How would we know? Companies like Twitter and Google render navigable an endless sea of information, and yet they write privacy policies and terms of service in block text because that is what the law expects. Were its techniques to catch up to, say, Facebook’s Newsfeed, who can say what disclosure could be capable of?
I canvass the prospect of law dragging disclosure into the 21st century at length in my article Against Notice Skepticism in Privacy (and Elsewhere), 87 Notre Dame L. Rev. 1027 (2013). Why bother to revolutionize disclosure, though? Why risk another shipwreck? Well, there is a reason that lawmakers keep picking notice as a regulatory mechanism, and that is the paucity of alternatives. Caveat emptor. Command-and-control. There are real tradeoffs to regulating through elaborate rules. We might say of mandatory disclosure what Winston Churchill once said of democracy: notice is the worst form of regulation, except for all of the alternatives.
I read Ben-Shahar and Schneider to implicitly acknowledge this point. They conclude the book (185)—and especially the law review article—with a call for less disclosure and more “advice”:
Advice is (usually) not just simpler and shorter than disclosure—if offers a different kind of help. Successful advice does not teach fundamentals or facts. It answers the real question: how likely are you to be satisfied?
The distinction between disclosure and advice is, to my mind, thinner than the authors make out. I am reminded of the distinction Ed Rubin draws between “theoretical” and “practical” knowledge: like advice, practical knowledge takes information and applies it specifically to the consumer’s particular situation. Sometimes it takes a simple warning to keep the kids off of the electric fence; other times a much more elaborate education is needed to create in the citizen or consumer and accurate mental model of risk.
Could the government mandate advice? Maybe. Could firms automate advice with technology? Increasingly, yes. Advances in artificial intelligence such as IBM’s Watson suggest that, at least within the confines of specific domains like healthcare, software can meaningfully assist professionals and consumers alike in making difficult decisions. If IBM’s system can beat people at Jeopardy and diagnose cancer, maybe it can walk you through term versus universal life insurance.
Who knows? I could be just another note in the long song of the Lorelei. I deeply admire this important work by Ben-Shahar and Schneider and will refer to it again and again.
This is the second in a series of posts that are part of a virtual symposium on the new book by Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure. Biographies for the first week's contributors can be found here. The authors' introduction to the symposium can be found here.
Steven J. Burton is the John F. Murray Professor of Law at the University of Iowa, where he currently teaches Contracts and a Seminar on Advanced Problems in Contract Law.
I begin with a disclosure: I have been a skeptic about statutory disclosure requirements in my field, contract law, for many years. In More than You Wanted to Know: The Failure of Mandatory Disclosure, Omri Ben-Shahar and Carl E. Schneider marshal an impressive array of empirical evidence, coupled with cost-benefit analysis, to argue that the costs of “mandatory” disclosure as such are substantial while the benefits are close to nil. But their advocacy has not moved me to a conviction that mandatory disclosure laws generally should be repealed, as they conclude (p. 183). In particular, certain disclosure requirements in contract law probably should be retained.
There are two reasons for my skepticism about their conclusion. First, Ben-Shahar’s and Schneider’s arguments do not distinguish mandatory disclosures of various kinds. Thus, Miranda warnings, informed consent to medical treatment, mandatory disclosure of contract terms, and other mandatory disclosures, generally should fall for the same sufficient reasons.
The problem, they argue, is that mandatory disclosures fail to achieve their singular goal—to lead “disclosees” to make good decisions about unfamiliar and complex choices when interacting with sophisticated parties (pp. 34-5, 54). Such disclosures communicate hardly anything to disclosees. Such disclosures do not fit the way people organize their lives and make choices, cannot simplify complex ideas, and cannot overcome problems of illiteracy and inumerasy. “Disclosurites,” as they call supporters of mandatory disclosure in various contexts, expect people to do something they cannot and rationally do not want to do. And, they suggest, there is no way to cure these deficiencies.
I think, however, that some disclosure requirements serve other goals, which Ben-Shahar and Schneider do not discuss. Abolishing some such requirements would have legal consequences that others would not have. Absent informed consent, for example, surgery probably would constitute a battery; however, repealing TILA would not have similar consequences. I don’t know enough about disclosure requirements outside of contract law to say for sure. But I would prefer that they had addressed the legal consequences of nondisclosure in various areas.
The second and similar reason for my skepticism is that, with respect to contract law, Ben-Shahar and Schneider do not distinguish common law disclosure requirements from statutory requirements, such as the unwieldy TILA. In the common law context, disclosure of contract terms is necessary if parties are to be obligated in accordance with those terms. Otherwise, disclosees do not meaningfully consent to the boilerplate terms of many kinds of contracts, especially consumer contracts. Without meaningful consent, or some appropriate alternative basis of contract, disclosees should not be bound by those terms. By contrast, no such consequence would follow from repealing statutory requirements.
Ben-Shahar and Schneider do not address the problem of obligation. Again, they would do away with mandatory disclosure, as such, in almost all circumstances (p. 183). They would, it appears, bind consumers to contract terms even when the consumer did not have an opportunity to look at them: They conclude, “[t]he right to read boilerplate before a purchase . . . can be discarded and only a few eccentrics will notice” (p. 194). This goes beyond Judge Easterbrook’s controversial opinion in ProCD v. Zeidenberg. That case requires that a party have access to the terms after a purchase and an opportunity to return the merchandise for a refund if the terms are unacceptable. Ben-Shahar’s and Schneider’s data and arguments would apply as well to terms disclosed after a purchase. They seem compelled by their own reasoning to endorse binding consumers to a merchant’s hidden terms. The open door to abuse is evident.
Lest this seem a strained reading of the book, consider their alternative. Rather than mandating disclosure of information that consumers do not want, Ben-Shahar and Schneider would leave matters to the market. They believe that information intermediaries, like Consumers Union and numerous websites, will supply the information that consumers want, not more, not less (pp. 185-90). And, they believe, mandatory disclosure is not needed for intermediaries to get the information they need to offer “advice” in the form of ratings, rankings, scores, grades, labels, warnings, and reviews. People, they think, want opinions, not data (p. 185).
Yes, but. . . . Consumers and others surely should not be bound by hidden contract terms just because advice and opinions are available in the marketplace. There would be no basis for an obligation to abide by such terms, even if the information market is more efficient than mandated disclosure: We do not have a general obligation to do the efficient thing. Or would Ben-Shahar and Schneider endorse Karl Llewellyn’s view that consumers and others should be bound by the few dickered terms but not by the accompanying boilerplate? I don’t know. I don’t think so. But I should know after reading this book. I would prefer that they had addressed the problem of contractual obligation flowing from nondisclosure.
Ben-Shahar and Schneider might respond that worrying about obligation is idle nonsense when disclosure has so little effect. Their focus, however, is on disclosure at the time of contract formation. I suggest that obligations created at that time matter at the time for performance, when a dispute may arise. A consumer, for example, then may complain to a merchant about something the consumer believes to be awry. The merchant may point to the applicable term(s) in the contract. If the terms were fair and available, and the merchant relies on them appropriately, the consumer may go away disappointed while accepting that she had taken a risk by not reviewing the terms beforehand. If the terms were unavailable, however, the consumer is more likely to be angry. She might feel with justification that she was being treated callously.
And maybe she was. She may continue by disputing, suing, and bad-mouthing the merchant, even when the merchant’s hidden terms were fair and fairly applied. This would not be good for either, whether or not the merchant was dealing sharply. If that were all there were to it, some merchants would disclose terms voluntarily. If some would not, however, the consequences would not be good for other consumers and merchants, either. The fabric of retail contracting would be frazzled. So, there may well be an externality here that justifies requiring disclosure sufficient to create an obligation.
Obligations are not idle. They have benefits, and the costs of omitting them could be significant. Helping consumers make better decisions is not the only goal of disclosure requirements. In my opinion, further analysis is in order.
I conclude that, in their zeal, Ben-Shahar and Schneider have overgeneralized. But this should not detract from the important contribution their book undoubtedly makes. They have brought together in one place much that had been scattered, and they have synthesized the data impressively. That alone sheds much light on disclosure requirements in general. I believe they have established that such requirements are not easy solutions to what often are complex problems. When it comes to repeal, however, each requirement should be considered carefully, one by one, especially with respect to goals it may pursue apart from helping disclosees to make more informed decisions.
Monday, September 15, 2014
This week we will begin our virtual symposium on the new book by Omri Ben-Shahar and Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure.
This week, the symposium will include contributions by the contracts law scholars introduced below:
Aditi Bagchi teaches Contracts and Labor Law at the Fordham University School of Law, where she is an Associate Professor. She writes about the nature of contractual obligation, contract interpretation, and questions in political and moral philosophy as they arise in contract. She has explored these issues with respect to employment and consumer contracts in particular. She has a related interest in the comparative political economy of contract, labor and corporate law.
Links to Professor Bagchi's academic papers can be found on SSRN here.
Steven J. Burton is the John F. Murray Professor of Law at the University of Iowa. He currently teaches Contracts and a Seminar on Advanced Problems in Contract Law. He joined the law faculty in 1977 after four years with the Office of the Legal Adviser at the U.S. Department of State.
Professor Burton is the author or co-author of five books: Elements of Contract Interpretation (Oxford University Press, 2009); An Introduction to Law and Legal Reasoning (Wolters, Kluwer, 3d ed. 2006); Principles of Contract Law (West, 4th ed. 2012); Contractual Good Faith: Formation, Performance, Breach, Enforcement (Little, Brown & Co., 1995) (with Eric G. Andersen); and Judging in Good Faith (Cambridge University Press, 1992). He has editedThe Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. (Cambridge University Press, 2000) and co-edited American Arbitration Principles and Practise (Practising Law Institute, 2008) (with Robert B. von Mehren and George W. Coombe, Jr.). He is also the author of numerous journal articles, including "The New Judicial Hostility to Arbitration: Federal Preemption, Contract Unconscionability, and Agreements to Arbitrate" 2006 Journal of Dispute Resolution 469; "Combining Conciliation with Arbitration in International Commercial Disputes," 18 Hastings Journal of International and Comparative Law 637 (1995); "Good Faith in Articles 1 and 2 of the Uniform Commercial Code: The Practice View," 35 William and Mary Law Review 1533 (1994); "Default Rules, Legitimacy, and the Authority of a Contract," 2 Southern California Interdisciplinary Law Journal 115 (1993); "Racial Discrimination in Contract Performance: Patterson and a State Law Alternative," 25 Harvard Civil Rights - Civil Liberties Law Review 431 (1990); "Ronald Dworkin and Legal Positivism," 73 Iowa Law Review 109 (1987); and "Breach of Contract and the Common Law Duty to Perform in Good Faith," 94 Harvard Law Review369 (1980).
Ryan Calo is an assistant professor of law at the University of Washington, where he co-directs the Tech Policy Lab, and an affiliate scholar at the Stanford Center for Internet and Society. Professor Calo researches the intersection of law and emerging technology, with an emphasis on robotics and the Internet. His work on drones, driverless cars, privacy, and other topics has appeared in law reviews and major news outlets, including the New York Times, the Wall Street Journal, and NPR. Professor Calo has also testified before the full Judiciary Committee of the United States Senate and was a speaker at the Aspen Ideas Festival.
Links to Professor Calo's academic papers can be found on SSRN here.
Robert Hillman is the Edwin H. Woodruff Professor of Law at Cornell University. He has written extensively on contracts and contract theory, the Uniform Commercial Code, and related jurisprudence. His articles have appeared in the Stanford, NYU, Columbia, Chicago, Michigan, Northwestern, Duke, and Cornell law reviews, and he is the author of The Richness of Contract Law (1997) and a coauthor of the Sixth Edition of White, Summers, and Hillman, Uniform Commercial Code (2012 through 2014). A 1972 graduate of Cornell Law School, Professor Hillman clerked for the Hon. Edward C. McLean and the Hon. Robert J. Ward, both U.S. District Judges for the Southern District of New York. After private practice with Debevoise & Plimpton in New York City, he began his teaching career at the University of Iowa College of Law. Hillman joined the Cornell Law School Faculty in 1982, and, in addition to teaching and authoring or co-authoring several major contracts and commercial law works, he served as Associate Dean from 1990-1997. An arbitrator, consultant on commercial litigation, and the Reporter for the American Law Institute's Principles of the Law of Software Contracts, Professor Hillman teaches contracts, commercial law, and the law of e-commerce. He also teaches a class on the nature, functions, and limits of law for Cornell University's Government Department.
Professor Hillman's c.v., including a list of publications can be found here.
Ethan Leib is Professor of Law at Fordham Law School. He teaches in contracts, legislation, and regulation. His most recent book, Friend v. Friend: Friendships and What, If Anything, the Law Should Do About Them explores the costs and benefits of the legal recognition of and sensitivity to friendship; it was published by Oxford University Press. Leib’s latest scholarly articles will appear in Legal Theory (on fiduciary and promissory theory) and the Georgetown Law Journal (on “regleprudence” and OIRA). He has also written for a broader audience in the New York Times, USA Today, Policy Review, Washington Post, New York Law Journal, The American Scholar, and The New Republic. Before joining Fordham, Leib was a Professor of Law at the University of California–Hastings in San Francisco. He has served as a Law Clerk to then-Chief Judge John M. Walker, Jr., of the U.S. Court of Appeals for the Second Circuit and as a Litigation Associate at Debevoise & Plimpton LLP in New York.
Linkes to Professor Leib's academic papers can be found on SSRN here.
Lauren Willis is Professor of Law at the Loyola Law School, Los Angeles. Professsor Willis clerked for the Office of the Solicitor General of the United States and for Judge Francis D. Murnaghan, Jr. of the United States Court of Appeals for the Fourth Circuit. Before coming to academia, she was a litigator in the Housing Section of the Civil Rights Division of the U.S. Department of Justice and worked with the U.S. Federal Trade Commission on predatory mortgage lending litigation. Professor Willis joined the Loyola faculty in 2004. She has also taught at Stanford Law School, the University of Pennsylvania Law School and Harvard Law School. She was honored by Loyola’s graduating day class with the 2008 Excellence in Teaching award.
Her recent publications include:
- When Nudges Fail: Slippery Defaults, U. Chi. L. Rev.
- The Financial Education Fallacy, American Econ. Rev.
- Will the Mortgage Market Correct? How Households and Communities Would Fare If Risk Were Priced Well, Conn. L. Rev.
- Against Financial Literacy Education, Iowa L. Rev.
- Decisionmaking and the Limits of Disclosure: The Problem of Predatory Lending: Price, Maryland L. Rev.
Stay tuned. It's going to be a very interesting week on the blog!
Friday, September 12, 2014
When he famously wrote 100 years ago, “Sunlight is the best of disinfectants,” Justice Louis Brandeis began a century of disclosure law. How do we protect borrowers and investors? Disclosure! How do we help patients choose safe treatments and good health plans? Disclosure! How do we regulate websites’ privacy policies? Disclosure!
In area after area, mandated disclosure is lawmakers’ favorite way to protect people facing unfamiliar challenges. Truth in lending laws, informed consent, food labeling, conflicts-of-interests regulation, even Miranda warnings, all arose because lawmakers rightly worried that uninformed and inexperienced people might make disastrous choices.
Brandeis was wrong. True, these laws have a worthy goal – equipping us to make better decisions. But in sector after sector, studies steadily show that mandated disclosure has been almost as useless as it is ubiquitous. Financial crises have bred mandates for decades — the Securities Act of 1933, truth-in-lending laws in the 60s and 70s, Sarbanes-Oxley in 2002, and, after the 2008 crisis, the Dodd-Frank Act. But each new crisis occurred despite the old elaborate disclosure requirements.
In our new book MORE THAN YOU WANTED TO KNOW: The Failure of Mandated Disclosure, we explain that mandated disclosure has become the regulatory default. It is politically easy for legislatures and convenient for courts.
Sunlight doesn’t disinfect because mandated disclosure is so ill-suited to address the problems it faces – and, in fact, can do more harm than good. Consider one of the most heroic efforts to get disclosure right. “Know Before You Owe” is a new regulation issued by the Consumer Financial Protection Bureau, the agency responsible to reform consumer credit markets. The Bureau recognized that people took bad mortgages because they misunderstood the terms. To prevent this, the Bureau heeded the Dodd-Frank mandate to promote “comprehension, comparison, and choice.” After much intelligent work, the Bureau has a new, simpler form that has done well in laboratory tests:
Gone are the tiny fonts and the overloaded lines of the old form (on right). The new form (on left) is a masterpiece of design, declaring the dawn of a new era of smart and simplified disclosure, designed by lawmakers schooled in decision sciences and cost-benefit analysis.
But mortgage disclosure has to work in the bank, not in the regulators’ lab. When borrowers arrive at a real-world loan closing, they will get the Bureau’s new form and almost 50 other disclosure forms about issues like insurance, taxation, privacy, security, fraud, and constitutional rights. The new form is part of a stack more than 100 pages high, courtesy of many laws from many lawmakers over many years. Nobody plows through all this. And no single agency has the authority to pare down the stack.
Despite failures, disclosures are growing in number and in length. In health care, informed consent sheets now look like the fine print web users click “I Agree” to, thoughtlessly. Just reviewing the privacy disclosures received in one year would take a well-educated fast reader 76 work days, for a national total of over 50 billion hours and a cost in readers’ time greater than Florida’s GDP. In banking law, to describe the many fees in a garden variety checking account, the average disclosure is twice as long (and quite as dismaying) as Romeo and Juliet (111 pages).
In internet commerce, if you want to buy an iTunes song you are told (as the law requires) to click the agreement to the disclosed terms. Do you read before clicking? Of course not. Florencia Marotta-Wurgler and co-authors have showed that only one in a thousand software shoppers spend even one second on the terms page. And if you do print out the iTunes terms, you confront 32 feet of print in 8-point font (See Ben-Shahar’s photo with the iTunes Scroll below). Hard as you read, you can’t understand the words, what the clauses mean, or why they matter.
What about simplifying with just a few scores or letters, like A, B, and C grades for restaurant hygiene? Alas, boiling complex data down to a manageable form usually eliminates or distorts relevant factors. So a recent study by Daniel Ho at Stanford found that the volatility of restaurant cleanliness and the discretion given to inspectors make hygiene scores unreliable and even misleading – and do not detectably help public health. There is almost no evidence that the simplest of all scores – the loan’s APR – has helped people make better loan decisions, and there is plenty of evidence that it didn’t.
If disclosures are so futile, why do lawmakers keep mandating them? Because disclosure mandates look like easy solutions to hard problems. When crises occur, lawmakers must act. Regulation with bite provokes bitter battles (often stalemate); mandated disclosure wins sweet accord (near unanimity). Mandated disclosure appeals to both liberals (personal autonomy and transparency) and conservatives (efficient markets). And as one financier admitted, "I would rather disclose than be regulated."
But disclosures are not just inept. They can be harmful. Disclosure mandates spare lawmakers the pain of enacting more effective but less popular reforms. Disclosures help firms avoid liability, even when they act deceptively or dangerously. Disclosures can be inequitable, for complex language is likelier to be understood by those who are highly educated and to overwhelm and confuse those who aren’t. Mandated disclosures can crowd out better information (time spent “consenting” patients cannot be spent treating them).
We are often asked what should replace mandated disclosure. If it does not work, little is lost in abandoning it. And if it cannot work, the rational response is not to search for another (doomed) panacea, but to bite the bullet and ask which social problems actually require regulation and what regulation might actually lessen the problem. We do not envy lawmakers the hard work of helping people cope with the modern consumer’s life. But persisting in mandating disclosures is, as Samuel Johnson said of second marriages, the triumph of hope over experience.
Ben-Shahar is Leo and Eileen Herzel Professor of Law, University of Chicago.
Schneider is the Chauncey Stillman Professor of Law and Professor of Internal Medicine, University of Michigan.
Thursday, September 11, 2014
Next week, we on the ContractsProf Blog will be hosting a virtual symposium on Omri Ben-Shahar & Carl Schneider's new book, More Than You Wanted to Know: The Failure of Mandated Disclosure.
The symposium will feature contributions from Aditi Bagchi, Steven Burton, Ryan Calo, Robert Hillman, Nancy Kim, Ethan Leib and Lauren Willis, among others. The first five will go up next week, followed by more the following week, with responses from the authors interspersed.
Tomorrow, we will post the authors' introduction to the symposium, which summarizes the argument of the book. For now, we just introduce the authors themselves.
Omri Ben-Shahar earned his PhD in Economics and SJD from Harvard in 1995 and his BA and LLB from the Hebrew University in 1990. Before coming to Chicago, he was the Kirkland & Ellis Professor of Law and Economics at the University of Michigan. Prior to that, he taught at Tel-Aviv University, was a member of Israel's Antitrust Court and clerked at the Supreme Court of Israel. He teaches contracts, sales, insurance Law, consumer law, e-commerce, food and drug law, law and economics, and game theory and the law. He writes in the fields of contract law and consumer protection. Ben-Shahar is the Kearny Director of the Coase-Sandor Institute for Law and Economics, and the Editor of the Journal of Legal Studies. He is also the Co-Reporter with Oren Bar-Gill for the Restatement Third of Consumer Contracts.
A list of Professor Ben-Shahar's publications can be found here.
Carl E. Schneider, the Chauncey Stillman Professor of Law and Professor of Internal Medicine, teaches courses on law and medicine, regulating research, property, the sociology and ethics of the legal profession, and writing briefs. His scholarship criticizes the dominant regulatory ideas in the law of medical ethics, particularly as they are applied to subjects like the relationship between doctor and patient, the use of advance directives, physician-assisted suicide, and human-subject research. His The Practice of Autonomy: Patients, Doctors, and Medical Decisions (Oxford University Press, 1998), which analyzes the malign effects of making patient autonomy the regulatory summum bonum, is an example of that project. Prof. Schneider is also the coauthor of two casebooks. With Marsha Garrison, he wrote The Law of Bioethics: Individual Autonomy and Social Regulation (West, 2009, second edition), a pioneering casebook in its subject. With Margaret F. Brinig, he wrote An Invitation to Family Law (West, 2007, third edition), an innovative family-law casebook. He recently served on the President's Bioethics Council and has been a visiting professor at Cambridge University, the University of Tokyo, Kyoto University, and the United States Air Force Academy.
A list of Professor Schneider's publications can be found here.
Wednesday, September 10, 2014
Upcoming Online Symposium: Margaret Jane Radin on Ben-Shahar & Schneider, More That You Wanted to Know
Starting next week we will be hosting an online symposium on the new book by Omri Ben-Shahar (left) and Carl E. Schneider (right), More Than You Wanted to Know: The Failure of Mandated Disclosure. As is our wont, the symposium will consist of a fortnight's worth of commentary on the book, provided by contracts profs from around the county, and responses from the authors.
In the meantime, we hope to whet our readers' appetities with this review of the book from Margaet Peggy Radin, author of Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, which was itself the subject of an online symposium here on the blog. Radin's review has the provocative title: "Less Than I Wanted to Know: Why do Ben-Shahar and Schneider Attach Only 'Mandated' Disclosures?" Here is the abstract from SSRN:
This essay responds to a new book by Omri Ben Shahar and Carl E. Schneider, entitled MORE THAN YOU WANTED TO KNOW: THE FAILURE OF MANDATED DISCLOSURE (Princeton, 2014). The book is an elaborate disclosure of why disclosure fails. It is hard to disagree with the fact that widespread deficits in consumer reading, understanding and decisionmaking undermine the efficacy of disclosures, and the book provides plenty of data to show this. But the authors do not much confront the fact that many mandates for disclosures are a response to what happens when firms are free to design their own fine print. The same consumer decisionmaking deficits the authors here elaborate exist when the disclosure (allegedly contractual) is created by private firms; and firms take advantage of those deficits. If mandated disclosure is abandoned, as the authors recommend, do the authors think recipients of bad boilerplate should just be on their own? The authors did not consider that question as part of their project in this book.
Friday, August 29, 2014
- I have all the cases, as well as links to Restatement and UCC sections and exercises that I use in the class (and then some), edited to my tastes and available to the students whether or not they have their hard copies with them;
- Cuts the costs of buying course materials from $150-200 to $15;
- Enables me to change the readings for my course in ways that I choose rather than in ways that casebook editors choose;
- Much easier to deal with (for me and my students) than Blackboard (the Voldemort of educational technology); and
- Provides helpful links to CALI guides, other study aids, contracts videos, and old exams
But the good news is that Debra Denslaw (pictured) is now helping us to keep the LibGuide up to date.
I would welcome suggestions for ways to improve the LibGuide. If you have free materials that would be helpful for first year students to which we could link, please let me know, and we will try to find a place for them on the LibGuide. Anyone who would like to use the LibGuide for their teaching is welcome to do so.
For fans of the blog who find it hard to find those memorable blog posts relevant to the cases you can teach, we gone through the blog and placed below each case links to posts that relate to that case.
Thursday, July 24, 2014
As Blog Emperor Paul Caron announced here on the Mother of All Blawgs, the TaxProf Blog, Mirror of Justice, a blog dedicated to the development of Catholic legal theory edited by Rick Garnett (Notre Dame) and 19 other prominent law professors of faith, has joined the Law Professor Blogs Network.
Rick Garnett announced the move on MoJ here.
We are delighted to welcome this well-established and tremendously interesting blog to the LPBN family, and we marvel at Paul's remarkably expanding empire.
Friday, July 4, 2014
Michelle Meyer (pictured) has a very detailed post on this subject over at The Faculty Lounge. Her approach is different from Nancy's, focusing narrowly (but thoroughly) on the question of whether an Institutional Review Board (IRB) could have approved the FB experiment. There Meyer arrives at a different conclusion than I think Nancy would arrive at. Meyer thinks an IRB could have and should have approved the FB experiment based on informed consent (although she recognizes that one could dispute whether such consent was actually present), and Nancy, I think correctly, questions whether there are very strong arguments that FB users knowingly agreed to this kind of experiment when they agreed to FB's terms.
Wednesday, May 28, 2014
As announced here on the TaxProf Blog, the Law Professor Blogs Network has added another member to its roster. The REFinBlog began in November 2012 and it is edited by Brad Borden (Brooklyn) and David Reiss (Brooklyn). The blog tracks developments in the real estate finance industry.
We welcome REFinBlog to the LPBN family and as always wish the contributors to our new sibling happy blogging.
Sunday, May 18, 2014
By Myanna Dellinger
Recently, Jeremy Telman blogged here about the insanity of having to pay for hundreds of TV stations when one really only wants to, or has time to, watch a few.
Luckily, change may finally be on its way. The company Aereo is offering about 30 channels of network programming on, so far, computers or mobile devices using cloud technology. The price? About $10 a month, surely a dream for “cable cutters” in the areas which Aereo currently serves.
How does this work? Each customer gets their own tiny Aereo antenna instead of having to either have a large, unsightly antenna on their roofs or buying expensive cable services just to get broadcast stations. In other words, Aereo enables its subscribers to watch broadcast TV on modern, mobile devices at low cost and with relative technological ease. In other words, Aereo records show for its subscribers so that they don’t have to.
That sounds great, right? Not if you are the big broadcast companies in fear of losing millions or billions of dollars (from the revenue they get via cable companies that carry their shows). They claim that this is a loophole in the law that allows private users to record shows for their own private use, but not for companies to do so for commercial gain and copyright infringement.
Of course, the great American tradition of filing suit was followed. Most judges have sided with Aero so far, the networks have filed petition for review with the United States Supreme Court, which granted the petition in January.
Stay tuned for the outcome in this case…
Thursday, April 24, 2014
Second, as announced on the TaxProf Blog here, the Law Professor Blogs Network is thrilled to announce the launch of Clinical Law Prof Blog, edited by Jeff Baker (Pepperdine) with these contributing editors:
- Bryan Adamson (Seattle)
- Kim Bart (Duke)
- Kelly Behre (UC-Davis)
- Warren Binford (Willamette)
- Kristina Campbell (UDC)
- Tanya Cooper (Alabama)
- Meta Copeland (Mississippi College)
- Jill Engle (Penn State)
- Carrie Hagan (Indiana)
- D’lorah Hughes (Arkansas (Fayetteville))
- Robert Lancaster (LSU)
- Inga Laurent (Gonzaga)
- Kelly McTear (Faulkner)
- Kelly Olson (Arkansas (Little Rock))
- Brittany Stringfellow Otey (Pepperdine)
- Danny Schaffzin (Memphis)
- Kelly Terry (Arkansas (Little Rock))
- Virgil Wiebe (St. Thomas)
From Jeff's inaugural post:
We hope to amplify and magnify the work of clinical law professors, to share resources and ideas and to collaborate with our colleagues online and in social media who are serving our community. We write to advance the twin causes of good teaching and justice.
Welcome, and happy blogging.
Monday, April 14, 2014
Six months ago, we reported that our blog is ranked #41 in the top 50 law blogs (or blawgs) and that we had experienced a healthy 9% growth in our readership over the previous 12-month period.
Today, Paul Caron announced on the TaxProf Blog that we have climbed to #35, with a 79.9% increase in our readership.
Thanks to all of our contributors and to our readers. We hope the upward trend continues.
Monday, March 24, 2014
- Comparative Law Prof Blog, edited by Shawn Marie Boyne (Indiana), Monica Eppinger (Saint Louis), Lissa Griffin (Pace) & Shitong Qiao (NYU)
- Human Rights At Home Blog, edited by Martha F. Davis (Northeastern) & Margaret Drew (Northeastern)
- Law and Economics Prof Blog, edited by Gerrit De Geest (Washington U.), Ben Depoorter (UC-Hastings), Brian Galle (Boston College), David Gamage (UC-Berkeley), Shi-Ling Hsu (Florida State), Murat C. Mungan (Florida State), Eric Rasmusen (Indiana) & Manuel A. Utset, Jr. (Florida State)
- Legislation Law Prof Blog, edited by Kevin Barry (Quinnipiac), Emily Benfer (Loyola-Chicago), Sara K. Rankin (Seattle) & Joel Rogers (Wisconsin)
To all the new start-ups, we say: Welcome and we look forward to your posts.
Wednesday, March 5, 2014
As a follow-up on Nancy's post from last week on Nutrition Labels and Wrap Contracts, I would like to call attention to a new paper posted on SSRN by my colleague Nicole Negowetti (pictured). The paper is called Defining "Natural" Foods: The Search for a "Natural" Law, and here is the abstract:
Because the FDA has refused to codify a uniform or enforceable definition of “natural” food, each food manufacturer determines its own standard for the term. Unlike the certified organic label, no government agency, certification group, or other independent entity ensures that “natural” claims have merit. Generally, the term “natural” means that a food has been minimally processed, contains no artificial ingredients or preservatives, is healthy and wholesome. However, food producers are not prohibited by law from using pesticides, genetically modified crops, fumigants, solvents, and toxic processing aids. Consumers and food producers are both disadvantaged by the inconsistent meanings and uses of the term. Recent surveys demonstrate that while consumers demand “natural” products, they are confused regarding the term’s meaning. A proliferation of consumer protection lawsuits against food producers has flooded the courts over the past two years. Food producers truly committed to producing “natural” products are competing with manufacturers who loosely interpret the term, produce and sell cheaper, inferior, and not-so-“natural” products. In light of the FDA’s reluctance to codify a “natural” definition, this Article will evaluate the recent decisions in the “natural” lawsuits and the attempts by courts, legislatures, the food industry, and retailers to establish a “natural” standard. The Article concludes that the search for an enforceable and comprehensive “natural” standard is futile. It predicts that the term “natural” has proven to be so confusing to consumers that the significance of the term has likely been diluted. Furthermore, because the claim has been so legally troublesome for food manufacturers, use of “natural” on food labels will surely be on the decline.
Friday, February 14, 2014
We at the ContractsProf appreciate your readership. Unfortunately, all of our bloggers are occupied at this time binging on Season 2 of House of Cards. Readers may stare at their screens, visit the TaxProf Blog or any other blog on the Law Professor Blog Network, or pass Valentine's Day by doing whatever it takes to get a free crib from Ikea (hat tip to Rachel Arnow-Richman).
We will resume blogging shortly.
Thank you for your patience.
Tuesday, January 28, 2014
Myanna's post about Uber got me thinking about a recent trip to New York City. New York City was the first city in which I took the occasional cab. I went to college and to law school there. When I was in college, some kindly relative told me that cabbies should get a 10% tip, and I have lived by that ever since. Turns out my kindly relative was a cheapskate.
As this article from The New York Times from about a year ago indicates, as early as 1947, cabbies expected at least 12½%, and until recently average tips exceeded 20%. Tips have come down as fares have gone up, and as of a year ago they averaged just over 15%.
New York City cabs are now equipped with credit card readers that offer riders the option to leave a tip. The reader will automatically add a tip, and it gives riders the option of tipping 15%, 20% or 25%. Behavioral economics suggests that most people will choose the middle one, and so it seems that the aim of the screen is to get cabbies' tips back up to where they were before the fares increased. When I saw these three options, I felt oppressed and manipulated, since I was still operating on the assumption that 10% is what is expected. Now I feel guilty that I did not tip more reasonably. In my own defense, I didn't save myself any money, since the my law school reimbursed me for my travel expenses on that trip. So you see, I wasn't being cheap; I was being a responsible steward of my law school's resources. But no more stingy tips for me.
I am a work in progress. I was as astonished as was Jerry Seinfeld (the character) to learn that chambermaids expect $5 a night (see the scene below, starting about 1:40 in).
Ann Landers is an even bigger cheapsake than my relative. Before we saw this, I would tip $2 a night, and I still think $5 a night is rather high. After all, Jerry Seinfeld (the character) is an experienced traveler, and he seems pretty free with his money. If he gives $1, $2 seems okay. But my wife and daughter agree with the suspected serial killer. Five dollars it is. It would have been interesting to see if chambermaids noticed an increase in generosity following the airing of this episode. And I wonder if they now wish that cable channels would stop showing Seinfeld reruns. The episode is now at least fifteen years old, so if $5 a night was a good tip then, one should expect $10 /a night now.
Monday, January 13, 2014
Long-time readers may notice that we now have by-lines. This is a product of our editor finally getting around to providing our contributing editors with their own individualized log-ins. So, no more hunting around at the bottom of posts for an abbreviated by-line.
Wednesday, January 8, 2014
As noted here on the TaxProf Blog, the mother of all LPBN Blogs, the Law Professor Blogs Network enjoyed a record-setting 2013, with traffic up 87.5% over 2012 as total network page views topped 18 million. Eighteen of the network's blogs are among the 50 most popular blogs edited by law professors. Four network blogs were named to the ABA Blawg 100 ("the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal"), and one network blog was named to the ABA Blawg 100 Hall of Fame.
- Appellate Advocacy Blog, edited by David R. Cleveland (Valparaiso), Kendall D. Isaac (Appalachian), Tonya Kowalski (Washburn) & Todd Bruno (Charleston)
- Business Law Prof Blog, edited by C. Steven Bradford (Nebraska), Joshua P. Fershee (West Virginia), Marcia L. Narine (St. Thomas), Stefan J. Padfield (Akron) & Anne Tucker (Georgia State)
- Civil Rights Law & Policy Blog, edited by Andrew M. Ironside
- Education Law Prof Blog, edited by Derek Black (South Carolina), LaJuana Davis (Cumberland) & Areto Imoukhuede (Nova)
- Elder Law Prof Blog, edited by Kim Dayton (William Mitchell), Rebecca C. Morgan (Stetson) & Katherine C. Pearson (Penn State)
- Gender and the Law Prof Blog, edited by by John Kang (St. Thomas) & Tracy A. Thomas (Akron)
- Law Deans on Legal Education Blog, edited by I. Richard Gershon (Mississippi), Paul E. McGreal (Dayton) & Cynthia L. Fountaine (Southern Illinois)
- Marijuana Law, Policy & Reform, edited by Douglas A. Berman (Ohio State)
- Securities Law Prof Blog, edited by Eric C. Chaffee (Toledo)