Wednesday, November 26, 2014
Steven W. Feldman, Mutual Assent, Normative Degradation, and Mass Market Standard Form Contracts (a two-part critique of Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law (part I), 62 Clev. St. L. Rev. 373 (2014).
And, for our readers only!
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English and European Perspectives on Contract and Commercial Law
Essays in Honour of Hugh Beale
Edited by Louise Gullifer and Stefan Vogenauer
The purpose of this book is to honour the influential and wide-ranging work of Professor Hugh Beale, who retires from full time teaching at Warwick University this year. It contains essays by twenty-five very distinguished authors, each of whom has worked with Professor Beale as a co-author, as a teaching colleague, during his time as Law Commissioner of England and Wales, or as part of the study groups working in Europe on contract and commercial law. The essays reflect different aspects of Professor Beale's interests. Some concentrate on English contract law, either from a historical or a current perspective, while others are focused on aspects of European contract law. There are four essays looking at current issues relating to security and financing, and, as befits a former Law Commissioner, three essays on law reform. The essays in the final section discuss trends in transnational and European commercial law. This book brings together the reflections of eminent writers from all over Europe on important issues facing contract and commercial law, and will be of interest to all scholars and practitioners working in these areas.
Louise Gullifer is Professor of Commercial Law at the University of Oxford, and is Fellow and Tutor in Law at Harris Manchester College, Oxford. She is an associate member of 3 Verulam Buildings and a Bencher of Gray's Inn.
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Friday, October 10, 2014
This is the fourth in a four-part post by Robin Kar that serves as a sort of coda to 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.
Part I, The Proverbial “Egg,” can be found here.
Part II, Breaking Out of the Shell, can be found here.
Part III, What Is This Emerging New Life? can be found here.
Part IV: Discarding the Last Remnants of the Old Shell
When reading More Than You Wanted to Know together with the reactions in the virtual symposium, I have been struck by two facts. First, we clearly know much more about how mandatory disclosure regimes work than ever before. Details aside, a consensus is emerging that these regimes do not always help consumers make better decisions. Second, despite this increase in knowledge and emerging consensus over the problem, there is even more uncertainty and even less consensus over how consumer protection should be reformed in light of these facts.
i. Diagnosing the Problem
How can more clarity about the empirical facts lead to less clarity about what the law should be? I believe that part of the reason is simple: many of the current debates over these issues are still insufficiently attentive to the rigorous types of argumentation needed to address the purely normative aspects of these questions. To be more specific, the third premise of the classical law and economics movement (see Part I) has not yet been replaced by rigorously developed lines of argumentation from the appropriate cognate fields—as has happened with the first two premises.
In saying this, I do not mean to suggest that rigorous argumentation on these topics is lacking. I mean to highlight a sociological fact about the current legal academy. I believe that the right lines of argument have not yet been sufficiently absorbed by contract law scholars who work in and around the law and economics paradigm. Because of the predominance and recent expansions of this paradigm within the study of contract law, this third premise is increasingly assumed or tacitly accepted by many other contract law scholars. This includes many scholars who do work predominantly in law and psychology or engage in straightforward empirical legal research.
In More Than You Wanted to Know, Ben-Shahar and Schneider are, for example, apparently willing to accept that the primary purpose of consumer protection law is to help consumers make better decisions. This is why they recommend better advice instead of more disclosure. But interestingly enough, almost all of the people who have responded critically in this symposium appear to accept—either explicitly or tacitly—either the same normative proposition or the alternative view that consumer protection laws should be set up to promote social welfare more generally. (The most notable exception is Aditi Bagchi’s response—though Steven Burton’s plea that the authors spend more time thinking about obligation may represent a similar thought.)
Hence, there is a normative assumption running through many of the current debates. The assumption is that consumer protection laws should be shaped to promote either better subjective choice or human welfare more generally. But is this normative premise true? And before we even get to that question: how might we determine whether it is true?
After the jump, I will pursue these questions. I will suggest that we cannot get clearer about the appropriate shape of consumer protection law, however, until we ask the right normative questions. And I will suggest that we are not yet doing that in major areas of contract law studies.
Thursday, October 9, 2014
This is the third in a four-part post by Robin Kar that serves as a sort of coda to 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.
Part I, The Proverbial “Egg,” can be found here.
Part II, Breaking Out of the Shell, can be found here.
Part III: What IsThis Emerging New Life?
In Part II, I described how More Than You Wanted to Know seeks to answer psychological and empirical questions relevant to consumer protection law based not on ungrounded psychological premises or the kind of abstract theoretical reasoning that is typically associated with the classical law and economics paradigm but rather on actual psychological and empirical research. I suggested that these methodological moves explain the power of the book to take us much closer to the truth about use and sufficiency of mandatory disclosure regimes to cure a host of problems in consumer contracting.
As someone interested in methodology and the sociology of knowledge production in the legal academy, I find developments like these incredibly interesting. I am fascinated by the fact that they are often viewed as developments internal to the law and economics movement—even though they essentially dispense with some of its early guiding premises and draw on methodologies from other cognate fields.
The movement to replace classical economic assumptions about human decision-making with psychological facts is, for example, sometimes called “behavioral economics”. But what is really happening is that classical economic assumptions about human psychology are being replaced with direct psychological research into the relevant facts. Similarly, the move to replace economic modeling with rigorous empirical research is sometimes called “econometrics”. But what is really happening—at least within the legal academy—is that fewer law and economics scholars are making predictions about legal rules based merely on theoretical modeling and more are engaging in genuine empirical research. When they do this, they typically use statistical and other methods developed in the social sciences more generally—and not methods specific to the field of economics.
In my view, one of the greatest virtues of some parts of the law and economics movement is that it has been willing to revise many of its early premises and adopt methodologies from other fields when necessary to make its scholarship better track the truth. This willingness is also one of its greatest sources of continuing strength. Because of this willingness, the field has essentially been able to absorb a broad range of criticisms, while continuing to broaden in influence and produce scholarship that better tracks the truth. More Than What You Wanted to Know is a wonderful example of this development—at least when it come to curing distortions caused by the first two premises of the classical law and economics paradigm. (For a description of these 3 premises, see here.)
Still, as far as I know, there is not yet any name for the move to replace ungrounded economic assumptions about how to assess normative arguments (i.e., premise 3 from Part I) with rigorous thought developed by experts in the appropriate cognate fields. These are the fields of moral, legal and political philosophy, along with the field of meta-ethics. Corresponding to this fact, there is not yet as robust an acknowledgment of the need for this move within many influential contract law circles.
When I say I believe significant new life may be emerging in the study of contract law, I am nevertheless referring to the possibility that all three of the classical law and economics premises be replaced with rigorous lines of evidence and argumentation drawn from the correct cognate fields. I am referring to a highly interdisciplinary research program that draws on (1) our best contemporary psychological findings into decision-making and how humans operate with legal rules when asking psychological questions relevant to contract law, (2) rigorous empirical research into the consequences of different legal rules when adopted by groups with real human psychologies, and (3) philosophically well-grounded argumentation and debate over the normative propositions that are most relevant to contract law.
I am describing a hope, not an expectation—because it is we, as a field, who will decide whether this new life fully emerges.
For a range of historically contingent reasons, the classical law and economics movement may just end up serving as the early vehicle (or the proverbial “egg”) for this transition within the legal academy. I believe that would be an incredibly good thing for the study of contract law because it would essentially allow the legal academy to adapt a ready-made set of social and academic networks that are already studying this subject matter intensively and in highly influential manners. But this would also require a much greater appreciation by scholars who work within this paradigm of the need for more rigorous philosophical input on normative questions.
The result would, moreover, not just be an expanded sub-field of law and economics. It would be better described as a fully informed search for the truth. The proverbial “egg” will have given birth to something much, much better.
But we are not yet there yet. There is still too large a disconnect between moral and political philosophers and economists within the legal academy. Hence, a great deal of highly influential work on contract law still risks producing distortion. In Part IV, I will show how this problem still affects many discussions of consumer protection law. I will also make a plea that we work together to breath the right new life into contract law studies going forward.
This is the second in a four-part post by Robin Kar that serves as a sort of coda to 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.
Part I, The Proverbial “Egg,” can be found here.
Part II: Breaking Out of the Shell
As we all know, the law and economics movement has proven a formidable force within the legal academy, especially in relation to subjects like contract law. As recently as 2012, even Charles Fried, the author of Contract as Promise, was forced to acknowledge that “the economic analysis of law may today be the dominant intellectual approach to legal institutions generally and contract law in particular.”
Because of Omri Ben-Shahar’s training and intellectual ties, many will view More Than What You Wanted to Know as a work that is partly internal to the law and economics movement. This affiliation should help the book because it will allow the book to speak credibly to a wide range of influential contract law scholars who currently share this affiliation. The book ultimately challenges one of the early dogmas of the classical law and economics paradigm, as described in my prior post, but—because of the book’s intellectual affiliations—the book can pose this challenge in an especially effective manner.
It should nevertheless be noted that the central insights in the book arise not from anything specific to the field of law and economics but rather from rejection of the field’s first two classical premises. With respect to human psychology (see premise 1 in Part I), Ben-Shahar and Schneider do not simply assume that consumers make more rational decisions whenever more facts are disclosed to them. Instead, they canvass a wealth of psychological evidence to the contrary. This evidence shows that consumers are especially likely to make poorer decisions as their choices become more complex and unfamiliar and when those terms are dictated by sophisticated contracting parties.
When determining the likely consequences of legal rules (see premise 2 in Part I), the authors similarly avoid abstract economic modeling and turn instead to direct empirical data. They draw this empirical data from a broad range of sources, and the facts suggest that mandatory disclosure regimes have increasingly begun to harm consumers in many contexts.
One reason for this is dynamic. Over time, mandatory disclosure regimes tend to lend increasing complexity and unfamiliarity to even the most banal of transactions. In one particularly poignant example, the authors describe the $.99 purchase of an iTunes song—which was accompanied by 32 feet of complex and often incomprehensible boilerplate (when printed out in a tiny font, as illustrated on the left). One of the underappreciated consequences of mandatory disclosure regimes is that they have increasingly begun to flummox consumers in even the simplest of transactions.
In highlighting facts like these, More Than You Wanted to Know takes us much closer to the truth about mandatory disclosure regimes than classical law and economics methodologies can. Speaking from a purely methodological perspective, it is able to do this because it is willing to abandon the first two premises of the classical paradigm and replace them with something better. It seeks to answer psychological and empirical questions relevant to consumer protection law based not on ungrounded premises but rather on actual psychological and empirical research.
This is an example of the emerging new life that I see in contract law studies. It is a better life because it is more likely to track the truth.
In my next post, I will nevertheless reflect more deeply on this new life. I will ask whether we have gone far enough as a field to make it really come to life. Have we—in other words—gone far enough yet to ensure that our collective research best tracks the truth?
Wednesday, October 8, 2014
This is the first in a four-part post by Robin Kar that serves as a sort of coda to 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.
When an egg hatches, new life emerges. But it often takes its first steps into the world with some remnants of its newly discarded shell.
I believe that significant new life may be emerging in the study of contract law, but that too much of an old shell remains. Rather than hide the ball, let me just say that the proverbial “egg” is the classical law and economics movement. And More Than What You Wanted to Know takes us part—though only part—of the way toward that emerging new life.
Jeremy Telman has been kind enough to let me post a late addendum to this symposium so that I can explain these perceptions. I want to use this review to prompt more scholars in the field—including Ben-Shahar and Schneider—to acknowledge what we need to do as a field to get further toward the right destination in the study of contract law.
As other contributors have noted, More Than You Wanted to Know is a full-throated attack on mandatory disclosure regimes. These regimes have been widely used and accepted in many contexts for some time now. It is therefore interesting to note that almost all of the commentators here have voiced some agreement with the basic thrust of the book—even while arguing that its thesis is overly general. We are witnessing the tail end of a shift from what once seemed to be common knowledge (i.e., about the usefulness and sufficiency of mandatory disclosure to cure a host problems in consumer contracting contexts) to a very different shared understanding.
But how has this shift occurred? As someone interested in the sociology of the legal academy and how different interdisciplinary methods can combine to produce (or distort) knowledge, I want to delve further into this question. I also want to ask whether we have gone far enough, in our collective studies of contract law, in the right direction. (I should probably apologize in advance to Carl Schneider that I will focus more on contract than informed medical consent in these posts, given the nature of this blog.)
The Proverbial “Egg”
If the “egg” is the classical law and economics movement, then that is where we should start.
Interdisciplinary studies of law can obviously produce enormous insight. When methods from cognate fields are applied to the law without sufficient reflection on the validity or applicability of their guiding premises, they can, however, also produce significant distortion. In this particular case, I believe that faulty premises associated with the classical law and economics movement are part of the cause of overblown intuitions concerning the use and value of mandatory disclosure regimes.
To analyze the source of this distortion more concretely, I ask you to consider an approach to studying contract law that might seem fanciful at first. This approach combines three basic elements:
- Human Psychology. The approach starts with certain assumptions about how human psychology and decision-makings works. These assumptions are intuitively plausible to some but are not rooted in any rigorous psychological research.
- Predictions about Legal Rules. The approach then generates predictions about the consequences of legal rules by modeling interactions among hypothetical people with the psychologies presumed in premise 1 under different hypothetical legal rules. The approach thus relies on theoretical modeling instead of rigorous empirical research to make empirical predictions.
- Normative Questions. The approach is skeptical of any kind of value that is not reducible to the value of some state of affairs. Proponents of this approach are thus impatient with normative arguments that do not fit easily into the consequentialist (and/or welfarist or cost-benefit) frameworks that they best understand. People who adopt this approach are not, however, typically trained in moral or political philosophy—which are the fields that deal most directly and rigorously with normative questions. Nor are they trained in the field of “meta-ethics”—which is the study of the status or objectivity of normative judgments. People who adopt this approach are thus largely unversed in the considerations that might legitimately ground (or respond) to their skepticism. This prevents them from knowing whether their grounds for skepticism are valid. It also prevents them from knowing whether their skepticism can be limited to concepts they reject (like “rights” and “fairness”), or whether it equally affects the values they accept (like “welfare” and a person’s “good”).
On its face, an approach like this would appear to be a recipe for disaster. It studies contract law and makes numerous recommendations for legal reform, but it employs a methodology that is unmoored in the specific classes of evidence and types of argumentation that are most relevant to its professed subject matter.
But as anyone reading this blog will know, this description is far from fanciful. To make it describe something real, one need only clarify that the psychology referenced in premise 1 is homo economicus—or the classical, “rational actor” model. Then these three premises provide a pretty good description of the heart of the classical law and economics approach to studying contract law.
These three premises can also seem to lend support to the value and sufficiency of mandatory disclosure regimes to cure a host of problems with consumer contracting. Mandatory disclosure regimes purport to produce the precise information needed for rational consumers to make better choices for themselves. If people are rational actors (see premise 1), then economic modeling (as described in premise 2) can thus be used to show that these regimes should simultaneously produce overall gains for consumers who contract, overall gains in social welfare and a more efficient allocation of resources. These regimes should also work relatively automatically, or “as by an invisible hand”, in the following sense: they should produce these results without the need for any centralized state planner to know in advance which exchanges are better for specific parties. There is, moreover, nothing else to value (as per premise 3). Hence, there is nothing else that legitimately speaks to the appropriate contours of consumer protection law.
There is no doubt about it: mandatory disclosure regimes work incredibly well in (classical economic) theory. The question is whether they work in reality. In the posts that follow, I will explore that question. I will suggest that More Than You Wanted to Know takes us further toward the truth—but cannot, as it stands, take us all the way there.
Tuesday, October 7, 2014
Introducing our Guest Blogger, Robin Kar's Coda to Our Virtual Symposium on More That You Wanted to Know
Professor Robin Kar is a professor of law and philosophy at the University of Illinois College of Law. He is a faculty affiliate of the Illinois Law and Philosophy Program, the Beckman Institute for Science and Technology (in the Cognitive Psychology Research Group), the Illinois Program in Law, Behavior and he Social Sciences, and the Illinois Network for Neurocultures. He is Director of the Illinois Center for Interdisciplinary and Comparative Jurisprudence, and a Project Leader for the Illinois Program on Cultures of Law in Global Contexts. He has a PhD in philosophy, with a special focus on moral psychology, moral, legal and social philosophy, meta-ethics, rational choice and game theory, and the foundations of economics and the social sciences. Some of his work on moral psychology, the psychology of obligation, and the nature of law and legal obligation can be found in pieces like The Deep Structure of Law and Morality, The Psychological Foundations of Human Rights, Hart’s Response to Exclusive Legal Positivism, and The Two Faces of Morality.
Readers of the blog are also likely already familiar with Professor Kar’s recent SSRN Top Ten hits on contract law and theory, Contract as Empowerment: A New Theory of Contract and Contract as Empowerment Part II: Harmonizing the Case Law, along with his piece The Challenge of Boilerplate. Kar teaches contract law and wide array of jurisprudence and legal theory courses, including seminars like morals, markets and the law.
Professor Kar’s posts serve as a sort of coda to our 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.
Professor Kar will present his argument in four parts:
Part I: The Proverbial “Egg” suggests that three ungrounded premises of the classical law and economics movement have often caused many people to think that mandatory disclosure regimes have an unwarranted degree of support.
Part II: Breaking Out of the Shell describes More Than You Wanted to Know as emerging from the classical law and economics paradigm but as able to challenge one of its central dogmas because it is willing to depart from two of the three core assumptions associated with that classical tradition. The book seeks to answer psychological and empirical questions based on real psychological and empirical research rather than ungrounded psychological premises and abstract theoretical modeling. This explains why the book is better able to track the truth about mandatory disclosure regimes.
Part III: What Is This Emerging New Life? outlines a better and even more broadly interdisciplinary paradigm that Professor Kar sees as potentially emerging from these developments. This research program would draw not only on psychological and empirical research to answer any psychological and empirical questions relevant to contract and consumer protection law but also on a broader range of philosophical methods of argumentation to answer any normative questions relevant to these topics. Part III argues that further development toward this interdisciplinary collaboration is needed for contract law studies to better track the truth.
Part IV: Discarding the Last Remnants of the Old Shell suggests that we still have a way to go in freeing ourselves from the limitations of the classical law and economics paradigm. It describes how this problem still causes many scholars to ask the wrong normative questions when asking how best to reform consumer protection law—as illustrated both by More Than You Wanted to Know and many of the responses to it in this symposium. This has led to an increase in knowledge about the psychological and empirical facts, but even more uncertainty and less consensus over how best to reform consumer protection law in light of them. This problem can only be fully addressed by attending better to the right normative questions.
So what are the right normative questions, you ask? Stay tuned to find out!
Tuesday, September 30, 2014
Below are links to the posts in 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.
Introducing the Virtual Symposium on "More That You Wanted to Know" (The authors' introduction)
More Than You Needed to Know Symposium: The First Six (Introducing the first six contributors)
More Than You Needed to Know Symposium: The Next Five (Introducing the second group of five contributors)
Thanks to all who participated!
Monday, September 29, 2014
The NYT had an article about e-cigarette label warnings today that was eerily appropriate given our symposium on Omri Ben-Shahar and Carl Schneider's book, More Than You Wanted to Know: The Failure of Mandated Disclosure. The reporter must have been following our blog symposium and seems to have come up with an example that supports the arguments made by Ben-Shahar and Schneider. The article explains how big tobacco companies have been putting warning labels on their e-cigarette packages that are more extensive than those on their tobacco cigarettes. There are several possible explanations for why they are doing this, ranging from the least cynical (they want to be good corporate citizens) to the more cynical (they are trying to set up their smaller e-cigarette competitors for later regulation, possibly reduce demand for e-cigs to boost sales of tobacco cigs, and protect themselves from liability).
I tend to be in the more cynical camp. Big tobacco companies are both attempting to protect themselves from liability by setting forth as many potential dangers of their product as they can, and they are positioning e-cigarettes as "just as" dangerous, if not more, than plain old tobacco cigarettes. The article notes something that readers of the book and blog already know - the disclosures have little effect on consumer purchasing decisions because nobody reads them. The strategy of big tobacco supports the arguments made by Ben Shahar and Schneider that disclosure hurts rather than helps consumers except there's one crucial difference - the companies are putting these extensive disclosures on the labels themselves. They are not mandated. By voluntarily disclosing the harms of e-cigs, big tobacco companies both protect themselves from liability and avert regulation. Doing away with mandated disclosure wouldn't prevent this kind of strategic selective disclosure --selective and strategic in the sense that these companies are only forthcoming with certain products and with certain types of disclosure. It's revealing that one of the companies claiming that e-cigarettes warrant more extensive disclosure than their tobacco counterparts is RJ Reynolds, which succesfully sued the FDA to prevent mandated graphic warnings on cigarette packages.
So - the battle about disclosure continues to rage....
After reading our book and the blogs about it, you are surely in danger of hearing more than you want to know and even more surely apprehensive about a response in which we battle and bicker point by point. Our critics have described our thesis accurately: More Than You Wanted To Know does argue that mandated disclosure is the most common and least successful form of regulation today, that it cannot be fixed, and that it does more harm than good. But our critics puzzle us in some basic ways we will briefly explore.
Our objection to mandated disclosure is not an objection to information. People need information, seek it, and commonly use it wisely, especially when they want and even enjoy it. Advertising would not thrive were people indifferent to information, nor would libraries, newspapers, universities, or Google. But mandated disclosure is not just about information; it is a regulatory technique that directs quite particular kinds of information at quite particular times in quite particular ways. It aspires to give people information they did not seek and do not like to use. Information they often find irrelevant to their decision. Information that is often repellently complex and baffling. Information that thus requires training to use well. All this while people are contending with counterparties who are well informed and have interests of their own.
Our critics in this symposium and elsewhere widely acknowledge the strength of our core arguments that mandated disclosure’s record is poor and its challenges great. In area after area, mandated disclosure’s history is the same: high hopes that people will be liberated from ignorance, made at last truly autonomous, and led to improved decisions. In area after area, able and thoughtful people have labored decade after decade to realize these hopes. After all these years, those hopes are still thwarted. One might have expected, then, that all this thought and effort and ability would be turned to seeking better regulatory methods and persuading law-makers to use them. Instead, two responses are common: One is to argue that disclosure will work if only we can at last learn to do it better; the other is to shift the goals of disclosure from helping people make choices to more general benefits more indirectly achieved.
For example, immense creativity has been harnessed to solve the problem of conveying complex information to people ill-situated to interpret it. We devote a chapter in the book to arguing that simplification—the deus ex machina of contemporary disclosurism—has not only disappointed its advocates’ eager hopes, it has barely budged the meter. True, there are always more techniques to try, like Ryan Calo’s “visceral” disclosures, Bar-Gill’s “use pattern” disclosure, or Porat-Strahilevitz’ “personalized” disclosures. These might succeed where others failed, but let’s make sure we understand how formidable their task is and how discouraging the history of such efforts has been.
Take Lauren Willis’ example of the CARD Act’s simplified disclosure, a payment “nudge” invented in the era of “smart” disclosure to prompt debtors to pay balances faster. Willis—one the most sophisticated critics of disclosures in consumer law—calls this regime successful even while recognizing that its benefits are not “dramatic.” How undramatic can benefits be before we stop advocating simplified disclosure? A recent study based on government data finds few cardholders responded to this nudge, that those who did saved only $24 on average, and that the total effect of this disclosure reform was $71 million annualized savings. In a $750 billion market, this benefit is so undramatic that we doubt it’s worth its design costs. (Luckily, the CARD Act did more than simplify disclosure. It also limited fees and saved consumers—especially lower income people—many billions of dollars.)
Can disclosure serve other goals than improving people’s decisions? Can it “improve accountability”? Can firms be deterred from bad conduct even if disclosures go unread? If disclosure helps the government improve enforcement actions, then the answer is yes. But now we are talking about a different regulatory animal, where information is reported to the government and used as a baseline for command and control, like enforcing emission standards or collecting taxes. When, instead, disclosure is targeted at the public, does it improve accountability? Hospital report cards have almost no detectable effect on the quality of medical care, but hospitals worried for their reputation seem to be sending high-risk patients (especially minorities) away. How is that for accountability? What evidence is there that campaign-finance disclosure reduces money’s corruption of politics? Or that Miranda stops police coercion? Instead of sanitizing public life, disclosure is often a fig leaf to make disreputable behavior acceptable. The rich buy influence—and file their disclosures. Police, as Stuntz shows, use abusive tactics—and recite Miranda warnings. Lenders lure gullible borrowers into disastrous debt—and making everything kosher with their neat stack of disclosures.
While our critics are rich in new refinements on disclosure and in new purposes for disclosure to serve, they are not rich in responses to one of our central concerns: that mandated disclosure is incompatible with basic features of human nature, with the way that people live their lives and make their decisions. Unless human nature changes or people live differently, refinements in mandated disclosure can do little and new purposes for mandated disclosure will be increasingly peripheral.
So what do we propose instead? We propose a moratorium on mandated disclosure because we want real problems to be addressed with real solutions. Are credit card fees obnoxious? Regulate them. Are medical charges unconscionable? Face up to the perplexities of medical costs. Do firms cheat customers? Punish them. Do conflicts of interest distort incentives? Decide whether the distortion is great enough to justify prohibiting the conflict. All these solutions are politically hard, and some of them may be politically unattainable. But is that a good reason to encourage law-makers to persist in solutions that, while politically feasible, don’t work?
Thursday, September 25, 2014
Ben-Shahar & Schneider Symposium Part XI B: David Vladeck, Living in a Post-Disclosure World, Part B
This is the eleventh 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 second week's contributors can be found here. The authors' introduction to the symposium can be found here.
David C. Vladeck is a Professor of Law at Georgetown University Law Center, where he teaches federal courts, civil procedure, administrative law, and a seminar on First Amendment litigation. Professor Vladeck recently returned to the law school after serving for nearly four years as the Director of the Federal Trade Commission’s Bureau of Consumer Protection.
This is the second of a two-part post. The first can be found here.
My commentary on More Than You Needed to Know picks up where Ben-Shahar and Schneider’s critique of mandatory disclosure leaves off; that is, how to reform the process to move to less bad disclosure regimes.
I have three modest points: In yesterday’s post, I argued that there are disclosure regimes that work. We should explore them to see why. In today’s post, I will argue that there are tools that can be used to address some of the flaws that Omri and Carl rightly identify and criticize. They must be employed. Finally, my tenure at the FTC taught me that mandatory disclosures are often an effective way to ensure accountability. That virtue is worth exploiting.
2. Fix disclosures. As Omri and Carl point out, disclosures often fail because they are designed to fail. True, but that state of affairs is not inevitable. Legislatures and regulatory agencies can mandate that disclosures do just that: Convey important information to consumers concisely, in plain English, and at the right moment, and nothing more.
Let’s do a thought experiment with privacy policies, which are rightly the poster child for disclosures that go unread. Let’s assume that companies were forced to abide by the following simple rules:
(2) Tell consumers what they need to know and nothing else. Next, imagine that the policies stated clearly and concisely the uses to which one’s personal data would be put. No other statement would be permitted, especially the long prefatory comments about how much the company really “cares” about your privacy. And no prevarication would be permitted. If the data will be given or sold to a third party, that fact – along with the identity of the third parties (and affiliates) and the uses the third party would put the data – would have to be disclosed. If the company wants to reserve the right to sell the data as it sees fit, the company would have to disclose in bold letters: “We reserve the right to sell your personal data to whomever we want!”
(3) Make the legal disclaimers and boilerplate a separate “disclosure”. Most privacy policies are incomprehensible because they are written by lawyers expert in what Senator Elizabeth Warren calls the art of “wordbarf” (her term, not mine) and focus mainly on disclaiming legal liability, not on “disclosing” the key information.
(5) Make sure that there is a robust default. Disclosure regimes are too often stand-alone efforts to regulate, employed as a sop to beat back efforts to impose more stringent regulation. Default rules are often needed so that if the disclosure fails, the presumption should be that the default rule remains in place.
I could go on. But you see my point. Today most disclosures are carefully engineered by lawyers and experts on human behavior not to be read, or to be discounted because of other claims more prominently displayed. If you want to see how sophisticated these obfuscation efforts can be, take a look at FTC v. Commerce Planet, Inc., 878 F. Supp. 2d 1048, 1068-72 (C.D. Cal. 2012), a fraud case involving the adequacy of buried disclosures that were contradicted by other far more prominent claims.
If we are going to reclaim disclosures, those techniques will have to be reined in by more than enforcement cases by the FTC and state agencies. More important, we must focus on making disclosures comprehensible and addressing the “indifference” problem that Omni and Carl describe. Professor Oren Bar-Gill’s book, Seduction by Contract, argues that more effective disclosures could be designed to enhance consumer welfare. And the FTC’s work on disclosures holds some promise. Look at, for example, the FTC’s work on Dot.Com disclosures available here.
3. Disclosures to ensure accountability. There is a long history of mandatory disclosures in the United States. For instance, even before there was an FDA, Congress mandated that food labels identify the name of the food, the food’s ingredients, the net weight of the food, and the name and address of the manufacturer. The requirement was intended to aid consumers in making purchasing decisions. But more than that, the requirement was intended to give law enforcement agencies a hook to bring enforcement cases in the event that the food was misbranded. When Congress passed the Food, Drug and Cosmetic Act in 1938, it carried forward these requirements, and they remain in force today.
The same of course is true with the Federal Trade Commission Act’s longstanding prohibition on deceptive acts and practices. Without disclosure regimes, many mandated by law, the FTC’s enforcement authority would be a shell of what it is today, as would be the case for State Unfair and Deceptive Acts and Practices statutes.
My point here isn’t to claim that disclosure regimes should ordinarily be imposed to serve only as accountability mechanisms. How to inject greater accountability into the marketplace is an issue that extends far beyond the scope of Omri and Carl’s wonderful book. Instead, it is to make the more modest claim that even if, as Omri and Carl demonstrate, disclosure regimes generally fail to inform, they often serve the collateral purpose of enabling law enforcement agencies, and at times private parties, to hold sellers accountable for their claims.
* * *
Let me end where I began. The Failure of Mandated Disclosure is a must-read book for anyone who cares about consumer protection, contract law, and an informed marketplace. To me, the book throws down the gauntlet to anyone who is willing to defend the status quo. I doubt that anyone will pick that gauntlet up. But if we agree that the status quo is indefensible, we need to figure how either to live in a post-disclosure world or how to improve disclosures to the point that some of Omri and Carl’s criticisms no longer stick. That is our challenge. I for one am not ready to surrender to a post-disclosure marketplace, especially when we have not yet really focused on designing and enforcing effective disclosure mandates.
Wednesday, September 24, 2014
Ben-Shahar & Schneider Symposium Part XI A: David Vladeck, Living in a Post-Disclosure World, Part A
This is the eleventh 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 second week's contributors can be found here. The authors' introduction to the symposium can be found here.
David C. Vladeck is a Professor of Law at Georgetown University Law Center, where he teaches federal courts, civil procedure, administrative law, and a seminar on First Amendment litigation. Professor Vladeck recently returned to the law school after serving for nearly four years as the Director of the Federal Trade Commission’s Bureau of Consumer Protection.
This is the first of a two-part post.
Living in a Post-Disclosure World?: The Challenge of The Failure of Mandated Disclosure
The title of Omri Ben-Shahar and Carl Schneider’s new book, More Than You Wanted to Know: The Failure of Mandated Disclosure, is perfectly apt; the book did tell me far more about the failings in mandated disclosures than I wanted to know. But to be fair, I was warned. The “disclosure” in the title put me on notice that I would learn “more than I wanted to know,” and the authors kept their promise, proving, perhaps in tension with their title, that disclosures sometimes work.
This is a book worth reading. The authors ably stake out and defend their thesis. They carefully, cogently, and at times, ardently make the argument that mandated disclosure regimes are destined to fail. Too many disclosures lead to overload. Too many disclosures are incomprehensible - written in leaden language, laden with disclaimers, and comprehensible only by people with multiple doctorate degrees. But what really dooms disclosures is indifference – a curse for which there is no cure. While improvements around the margins may be possible, the authors contend that engaging in the quixotic effort to fix unfixable mandated disclosure regimes is a fool’s errand. Instead, we should move to better and more effective regulatory regimes in those instances where they are really needed.
Make no mistake; Omri and Carl are not corporatists who want to leverage corporate power over consumers. Their intentions are pure and good. They care deeply about promoting consumer welfare. But, in their view, our current disclosure regime does the opposite: It is a ruse that promises consumer protection but delivers nothing more than an illusion. There is, of course, a great deal of truth in the authors’ critique of mandatory disclosure regimes. Few, if anyone, will defend the status quo. I certainly will not. I share most, if not all, of the criticisms that the authors rightly train on mandatory disclosure regimes. And I wholeheartedly endorse their view that disclosure and more disclosure, as a politically expedient compromise, often prevents needed regulation.
But I do not accept the pessimism that runs through the book. Reading it, I was reminded of the quip about democracy – which “ is the worst form of government, except for all those other forms that have been tried from time to time.” In some respects, disclosure mandates are the worst form of consumer protection tools. But for some things, disclosures serve important interests. Disclosures cannot simply be abandoned; we need to preserve them where appropriate, we certainly need to figure out how to do them better, and we need to stop using disclosure regimes as a substitute for needed regulation. For this reason, I’ll pick up where the book leaves off; that is, how to reform the process to move to less bad disclosure regimes.
I have three modest points: In today’s post I will argue that there are disclosure regimes that work. We should explore them to see why. In my second post, I will argue that there are tools that can be used to address some of the flaws that Omri and Carl rightly identify and criticize. They must be employed. Finally, my tenure at the FTC taught me that mandatory disclosures are often an effective way to ensure accountability. That virtue is worth exploiting.
1. Success stories: There is no question some mandatory disclosure schemes work. A number of health warnings have succeeded. For instance, no one would seriously challenge the success of the Food Allergen Labeling and Consumer Protection Act of 2004 in substantially reducing life-threatening allergic reactions to foods. Nor would one take issue with the success of poison-prevention programs that rely on Skull and Crossbones warnings. Perhaps the most dramatic success story is the virtual elimination of Reye’s syndrome in children in the United States as a result of mandatory labeling of aspirin-containing products. Reye’s syndrome is a rare and potentially fatal condition affecting children and adolescents. The syndrome attacks the brain and liver, and about half of those afflicted die, with many more suffering severe and irreversible brain damage. By the late 1970s, strong evidence emerged that there was an association between Reye’s syndrome, and children and teenagers taking aspirin-containing products to treat flu like symptoms and chicken pox. I was a lawyer at Public Citizen Litigation Group when we brought suit to compel the FDA in 1986 to amend the labeling of all aspirin-containing products to warn parents of the association. The litigation took a few years, but ultimately succeeded in forcing the FDA to put this warning on aspirin-containing products: “Children and teenagers who have or are recovering from chicken pox or flu-like symptoms should not use this product. When using this product, if changes in behavior with nausea and vomiting occur, consult a doctor because these symptoms could be an early sign of Reye’s syndrome, a rare but serious illness.” The statistics are striking. “In 1977, 454 cases of Reye’s syndrome were reported in the United States. Of the 373 cases with follow-up, 42% of these patients died, and 11% survived with residual neurologic damage. Incidence was increased with viral epidemics, especially influenza B and varicella. Reye’s syndrome cases in the U.S. numbered 555 in 1980, but they have fallen drastically. From 1994 until 1997, identified cases in the U.S. were fewer than two per year.” Lisa Degnan, Reye’s Syndrome: A Rare But Serious Pediatric Condition, U.S. Pharmacist.
To be sure, there are a number of factors that one could argue make these examples aberrational: they involve matters of life and death; they generally involve young children or other vulnerable populations; and with the food allergen legislation and the Reye’s syndrome warning, the risks were conveyed not just by warnings, but by broader publicity and public education. And the industry has become more sensitive to these risks. For instance, most children’s pain relievers no longer contain aspirin (although some do), and some manufacturers have reformulated their products to reduce the use of food dyes, nuts, and other known allergens. All fair points. But the publicity surrounding Reye’s syndrome has disappeared over the past thirty years, as has the buzz surrounding children’s allergies. Yet Reye’s syndrome has been virtually eliminated, and the risk of allergic reactions triggered by food allergens has been driven down.
Why did these disclosure schemes work? I think that there are a number of reasons. First, people are not indifferent to immediate life-threatening health issues, especially for their children. Second, these disclosures were just that - disclosures written in short, highly directive language, geared to people with no more than an elementary school education. Third, the disclosures were not drowned in a sea of disclaimers, which is often the fatal flaw. Fourth, the disclosures were properly labeled – the disclosure did in fact convey important health information. Fifth, the disclosures were provided just in time – just when the consumer is making a purchase, and not in a pile of paper in the box to be viewed at some point after the purchasing decision. And sixth, the disclosures were part of a broader education campaign and were backed up by a strong regulatory scheme.
Tune in tomorrow for Part B.
This is the tenth 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 second week's contributors can be found here. The authors' introduction to the symposium can be found here.
Jeff Sovern is a Professor of Law at St. John’s University in New York City where he teaches Consumer Protection, among other subjects.
Ben-Shahar’s and Schneider’s book convincingly demonstrates that disclosures are rarely effective consumer protections. But there is one type of consumer disclosure where, in my view, at least, the jury is still out, though I think Ben-Shahar and Schneider feel differently. I refer to the single-letter restaurant grade disclosures that some states and municipalities require be posted on restaurant doors. I want to discuss those disclosures in this post, in the hope that they can also be extended to other situations.
Localities have long inspected restaurants for health code violations. In the pre-internet era, the resulting reports were often available for public inspection in government offices, but no doubt few consumers troubled to travel to those offices to read them. When the internet became available, some municipalities posted the reports on the web, and some consumers surely consulted them, but it seems likely that few bothered. As a result, there is no reason to think the inspections had much impact on consumer decisions about which restaurants to patronize. At some point, Los Angeles, later joined by New York City, San Diego, South Carolina, and various other governments, began distilling the grades down to a single letter grade—often an A,B, or a C--and requiring restaurants to display them at their entrances. Theoretically, enabling consumers to see a readily-understandable disclosure at the time they made a decision to enter the restaurant would make it possible for consumers to use the disclosure.
As Ben-Shahr and Schneider note at page 155, initial reports about restaurant grades were quite positive. Hospitalizations for food-borne illnesses in Los Angeles fell by 20% while the later adoption in New York was said to cut salmonella cases by 14%.Apparently, restaurateurs, not wanting to have a bad grade on their front door, improved hygiene. The resulting improvements benefited not only those who heeded the grades—by telling them which restaurants were less clean—but seemingly even those who ignored the grades, because restaurants became cleaner. It seemed like the perfect disclosure, in that it appeared all restaurant patrons were helped by it.
But a later study was less promising. Daniel Ho’s article, Fudging the Nudge: Information Disclosure and Restaurant Grading, 122 Yale L. J. 574 (2012), found, in Ben-Shahar’s and Schneider’s words that “grades have no discernable health benefits, distort the allocation of inspection resources, and mislead diners.” While Ben-Shahar and Schneider don’t say explicitly that single letter grading is a failure, the book left me, at least, with the impression that that was the authors’ view, which of course is in keeping with the rest of the disclosures the book describes. While Ben-Shahar & Schneider quite rightly point out genuine problems with single-letter grading, I believe that it is premature to conclude that it can’t work in some contexts. It would be unfortunate if governments abandoned a form of disclosure that might work merely because many other forms do not.
Ho’s claim that restaurant grades do not affect health is based on his findings that the grades did not have an impact on calls to 311 and Google searches. The assumption is that people suffering stomach issues from eating at unclean restaurants would use Google for relevant searches and that therefore if the grades resulted in fewer stomach ailments, we would see fewer such searches; because the searches didn’t decline, neither did the incidence of illnesses caused by eating at restaurants. Similarly, if people suffered gastrointestinal problems they attributed to eating at unclean restaurants, they could be expected to call 311 and report the restaurant; the absence of a drop in calls about restaurant therefore implies that there was not a drop in stomach problems.
That makes sense, up to a point. But all it gets us to, when the earlier studies are taken into account, is that the evidence for the effectiveness of single-letter disclosure grades is inconsistent. The bigger problem, however, is that while the studies may provide the best evidence we have available at present to evaluate single-letter disclosures, they are flawed as measures of such disclosures. Changes in public health during the relevant periods may be attributable to many things, of which the restaurant grades are only one. Obviously, people who become ill through eating foods prepared at home would not be affected by restaurant grades. But even if we ignore that, another problem is that consumers may find the disclosures useful even if the disclosures do not improve public health.
I teach in New York City, one of the localities using health department grades. For some years, when I take up the topic of disclosure in my consumer law course, I have asked students whether they take the health grade disclosures into account in choosing among restaurants. Usually a minority of students report that they do not. It is fair, I think, to say that those students do not benefit from the grades, unless the grades positively alter restaurateur conduct, which, as noted above, they may. But most students have claimed that they do take the grades into account. And their concern did not seem motivated solely by health concerns, though that was a factor. Another factor was disgust. Some students seem interested in avoiding unclean restaurants wholly apart from health concerns because they are repulsed by eating insect parts, etc.
The students I have polled are too small a sample to shed much light on consumer behavior generally, and as law students who have chosen to take a consumer law class, are hardly a random sample of the population. In addition, perhaps my students exaggerated the extent to which they paid attention to the grades. But I don’t think so. During one of the semesters, the cafeteria in our school received a poor grade, and students reported that they stopped eating there. I doubt they would have invented that claim. And because our building is some distance from the other eateries, the decision to avoid the cafeteria imposed some inconvenience, suggesting that the students in question valued cleanliness and the grades which signaled the lack thereof more than the convenience of eating in the cafeteria.
In short, even if the grades did not affect public health, about which there is some doubt, consumers could still find them valuable by enabling avoidance of behavior—such as eating food shared by rodents—that they see as repulsive. This does not answer the question of whether the grades are worth incurring the costs they impose, but it does indicate that the grades have utility.
To be sure, some existing restaurant grade systems have been flawed in implementation. Professor Ho observed, and Professors Ben-Shahar and Schneider echoed, that in San Diego, grade inflation has resulted in 99.9% of the restaurants receiving an A. In New York, they report, restaurant inspectors grading practices seem not to be consistent. But that does not mean that similar grading systems cannot be implemented well. Perhaps they can’t be, but we don’t have enough data to determine that.
It is easy to imagine other single-letter grading systems that might benefit consumers. For example, now that the Consumer Financial Protection Bureau has a public database for the receipt of complaints about credit card issuers, a system could assign a grade to credit card companies based on the percentage of their customers who had filed a complaint that was not satisfactorily resolved. The grade could be made available to consumers before they applied for a credit card. Would you like to know the grade a company had received before you applied for its credit card? And would such a system increase company incentives to respond to consumer complaints, or even try to forestall them, just as consumers feel pressure to pay even disputed debts to avoid soiling their credit reports?
More than most, law professors should be aware of the possibility that grades boiled down to a single symbol might be effective. Law schools have long bemoaned the impact of the US News rankings on applicants’ decisions where to go. The US News rankings are flawed, but they have an impact. To the extent that it is possible to create grades that are not flawed, they remain a tool in the consumer protection arsenal. Of course, the fact that grades work in one context doesn’t mean they will work in all contexts. Consumers might heed restaurant grades—if they do--because they wish to avoid illness or being disgusted and applicants to law schools might pay attention to the rankings because they perceive decisions as to where to study to be of great importance. Perhaps grades in contexts with less at stake would elicit less attention. And some matters surely cannot be reduced to a single grade, such as determinations about which mortgage offers the best terms. In that scenario, disclosure, whether in a single grade or at greater length, seems unlikely to be successful.
The fact is, we don’t know whether single letter grades work or not. A better test of their effectiveness would be to watch how consumers behave when selecting between two choices which received different grades. The data that we have is an imperfect proxy for that study, and it is far too soon to know whether they work. Ben-Shahar and Schneider are correct in much of what they say about disclosure’s limits. But it would be unfortunate to give up on single-letter grades given the evidence which suggests that they may help consumers.
Tuesday, September 23, 2014
This is the ninth 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 second week's contributors can be found here. The authors' introduction to the symposium can be found here.
Daniel Schwarcz is an Associate Professor of Law and the Solly Robins Distinguished Research Fellow at the University of Minnesota Law School and he comes to us fresh form his star turn on NPR's Planet Money.
Note: This response draws from my article, Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection, 61 UCLA Law Review 394 (2014)
More Than You Wanted to Know is clearly an important, persuasive, and meticulously researched book. Its core claim is that mandatory disclosure is an oft-used regulatory technique that has repeatedly failed to help individuals make better decisions in complex and unfamiliar settings. More controversially, Ben-Shahar and Schneider argue that this failing of mandatory disclosure is largely insurmountable, because most people (i) have little reason to read disclosed information in the first place, (ii) cannot understand such information even when they want to, and (iii) are unable to translate such information into better decision-making. Although I ultimately believe that Ben-Shahar and Schneider are overly pessimistic about the capacity of modernized disclosures (such as the mortgage disclosure composed by the Consumer Financial Protection Bureau) to improve decision-making, their skepticism on this front is both reasonable and persuasively defended.
Nonetheless, More Than You Wanted to Know suffers from an important limitation, in my view. Until its final few pages, the book almost entirely ignores the possibility that mandatory disclosures may help to achieve regulatory objectives in ways that do not depend on their ability to directly help individuals make better decisions. In fact, most of the book seems to have been written on the assumption that mandatory disclosure can only work if disclosees generally read, understand, and use disclosures. (Ben-Shahar and Schneider explicitly say as much on page 34). But disclosures that make relevant information more readily available to the public – either by requiring the production of new information or by making existing information more easily and cheaply accessible – may deter over-reaching by firms, improve the accuracy of prices, or indirectly facilitate more informed decision-making even if they do not directly improve decision-making among most potential recipients of disclosure.
First, mandatory disclosure can discourage firms from embracing potentially objectionable strategies in the first place, because doing so raises the risk of substantial reputational or regulatory consequences. For instance, Ben-Shahar and Schneider criticize hygiene-grade requirements for restaurants on the basis that they do not empower consumers to choose less risky eating establishments. But this claim is not necessarily inconsistent with evidence suggesting that such grades reduce food-borne illness by inducing food establishments to take more care (though the evidence here is indeed mixed). This is hardly the only instance where Ben-Shahar and Schneider criticize disclosure strategies that can have important benefits by enhancing accountability and deterring misconduct, rather than by helping individuals make better decisions. A non-exclusive list of additional examples includes mandatory disclosure of (i) campus crime, (ii) graduation and placement statistics, and (iii) hospital report cards. Further examples of mandatory disclosures that can deter overreaching or misconduct, but which Ben-Shahar and Schneider do not extensively discuss, include mandatory disclosure in the contexts of (i) environmental regulation, (ii) campaign finance law, and (iii) mortgage discrimination.
Second, mandatory disclosure that increases the public accessibility of relevant information can improve the accuracy of prices. This, of course, is the primary rationale for mandatory disclosure in securities markets. Thus, when Ben-Shahar and Schneider criticize mandatory disclosure in securities regulation because most investors don’t read prospectuses, they miss their mark. As above, mandatory disclosure in securities regulation is important even though most investors do not read or understand prospectuses because information contained therein impacts the price of securities due to trading by market arbitragers. Although the link between mandatory disclosure and price accuracy is best illustrated in the context of securities regulation, other examples abound. For instance, mandates requiring home-sellers to disclose relevant information in response to standardized forms may help ensure that the price of a property more accurately reflects its market value.
Third, mandatory disclosure can improve individual decision-making indirectly, by empowering consultants, information intermediaries, and computer programs to provide tailored advice to individuals. Thus, the true promise of “smart disclosure” is not that computer programs will provide relevant disclosures to specific consumers (which is how Ben-Shahar and Schneider describe it), but that they will provide precisely the type of personalized advice that Ben-Shahar and Schneider acknowledge to be so useful. Mandatory disclosure can play an especially vital role in facilitating smart disclosure by making standardized, computer-readable data publicly available to potential developers of these tools. This can dramatically decrease costs for those who might develop smart disclosure tools – such as entrepreneurs and public interest groups – and thus enhance competition and market entry in this domain.
In contrast to their meticulous and empirically-grounded (though perhaps unduly pessimistic) criticisms of disclosures’ capacity to directly improve individual decision-making, Ben-Shahar and Schneider’s responses to the above points are unconvincing and under-developed (as reflected by the fact that they only emerge in the book’s final ten pages). Their primary retort is that mandatory disclosure is not needed to make information more broadly available to the public, because those who would make use of such information can acquire it without the need for government mandates. But this largely misses the point, which is that mandatory disclosure can make relevant information more easily and cheaply available to market intermediaries, academics, journalists, lawmakers, public interest groups, and developers of “smart disclosure” tools. This, in turn, can enhance the capacity of these actors to police against market misconduct, improve market efficiency, and/or provide more informed personalized advice. To be sure, the magnitude of these effects is an empirical question that is context-dependent. But there are good reasons to believe that Ben-Shahar and Schneider’s pessimism in this domain is excessive. In any event, in contrast to most of the book’s claims, this pessimism is surely not empirically grounded, as illustrated by the absence of any supporting citations for the arguments they develop on this front in the book’s final chapter.
Ben-Shahar and Schneider also suggest at several points that there is a tension between using mandatory disclosure to enhance the public availability of information and using it to directly improve individuals’ decision-making. Not so. Mandatory disclosures that are principally aimed at enhancing accountability, empowering market intermediaries, or improving market efficiency can and should be distinct from mandatory disclosures that are meant to repackage and summarize information so as to improve decision-making. This point is illustrated by the coexistence of full and summary securities prospectuses, or by the coexistence of summary disclosures of credit card terms and a public database containing the complete contracts of all credit card providers.
Ultimately, the capacity of mandatory disclosures to increase accountability, improve market efficiency, or indirectly enhance the accuracy of personalized advice is substantially dependent on context. So too, in my view, is the capacity of mandatory disclosure to improve decision-making. For instance, my reading of the evidence on nutritional labels is that they can indeed substantially improve consumer decision-making, even if this occurs less often or consistently than would be ideal. For these reasons, I believe that Ben-Shahar and Schneider go too far in condemning mandatory disclosure as a regulatory tool in virtually all settings. Nonetheless, the evidence they canvass and the arguments they develop provide valuable insight both as to the limits of mandatory disclosure and to the difficulties involved in designing and implementing them effectively.
Ben-Shahar & Schneider Symposium, Part VIII: Florencia Marotta-Wurgler, Even More Thank You Wanted To Know
This is the eighth 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 second week's contributors can be found here. The authors' introduction to the symposium can be found here.
Florencia Marotta-Wurgler is a professor of law at New York University School of Law.
This review of Professors Ben-Shahar and Schneider More Than You Wanted to Know, is based on my earlier review, titled “Even More Thank You Wanted To Know About the Failures of Mandated Disclosure, which is forthcoming in the Jerusalem Review of Legal Studies.
The book offers an important and compelling critique of the many forms of disclosure regulation and explain why the problems cannot be fixed. According to the authors, successful disclosure regulation depends on the simultaneous success of too many factors. Disclosers must reveal the right type of information, in the right format, and at the right time; and, of course, individuals must read, understand, and use this information in a way that enables them to make the right decision. The authors claim that this just doesn’t happen. Somewhere along the line, the process breaks down. For example, evidence shows that individuals don’t read fine print and, even if they wanted to, they wouldn’t be able to read it because disclosures are usually long, complex, and hard to understand.
Instead of reading disclosures and making choices, the authors argue, what consumers really want is advice—in the form of ratings, rankings, scores, and the like. They observe that current opinion services, such as TripAdvisor and the reviews in Amazon.com, don’t need disclosure regulation because they function properly on their own. (The authors note that consultants do this, too, but that they are unreliable.) They conclude by urging regulators to quit insisting on the failed recipe of mandatory disclosure and resist the urge to replace it with something else. This will leave much-needed room for alternative mechanisms to emerge that can more effectively address specific problems associated with imperfect information.
While I certainly agree with the main premise that disclosure regulation in its current form is of almost no value (see here and here), I must push back on the claim that information intermediaries function properly on their own to supply the right type of information that consumers want. [In the full review, I also offer new evidence in support of the authors’ claim that disclosures tend to get worse over time using an analysis of a sample of consumer standard form contracts that reveals changes in contract and disclosure practices from 2003 until 2010. While sellers broadly increased the disclosure of their contracts over these years, offsetting this improvement is a significant increase in the length of contracts, an increase in bias against consumers, and no improvement in readability. Indeed, contracts that became more accessible have a particular tendency to grow longer and more one-sided.]
On Ratings, Rankings, and Information Intermediaries.
After enumerating all the problems with disclosure regulation. Ben-Shahar and Schneider posit that information intermediaries are able to supply the type of information that consumers want and need (“ratings, rankings, scores, grades, labels, and reviews”) without the need for mandatory disclosure. While this last point might be debatable—especially when it comes to “use pattern” disclosures—relying on advice, ratings and rankings to inform individuals about fine print suffers from a number of the same maladies the authors identify with mandatory disclosure. In particular, they assume that people will care enough to actively seek them out, understand them and use them wisely; that they will convey the right type of information, and that they will be produced well and not suffer from some of the problems and conflicts that trouble disclosure regulation.
Evidence suggests, like in disclosure regimes, that these conditions are rarely met. Take “user generated” rankings and reviews, such as Amazon.com (products), Expedia (hotels), and Yelp (merchants), which the authors use examples of well-functioning information intermediaries. An encouraging fact is that positive ratings affect sales, suggesting that consumers rely on them in making decisions about which goods or services to buy. This is a clear improvement over mandatory disclosure and enough to pursue further consideration. The problem, though, is that user-generated reviews can by systematically biased, noisy, and thus not very reliable. For example, there is evidence that reviews tend to become increasingly negative as ratings environments mature. Two experiments also show that reviewers tend to adjust their evaluations based on reviews previously written by others. There is the problem of shill reviews. These behaviors introduce noise and bias and offer no panacea or an obvious improvement in consumer decision-making—the end objective here—over mandatory disclosure. Moreover, many reviews and rankings are used for one-dimensional decisions, such as whether to eat a particular restaurant or read a particular book, and might not convey much information about the quality or terms of the fine print.
On the other hand, expert-generated reports, like those in Consumer Reports, can get around some of the problems of user-generated reviews. Experts test and experience the good or service and pertinent standard form contract terms, and may also report some contract features (such as warranties) for big-ticket items. Specialized intermediaries, such as PrivacyChoice, The Fine Print Project, and FairContracts.org offer summarized reviews of the content of disclosures. Indeed, there are sites and blogs that seek to simplify fine print disclosures to consumers, including the terms in online privacy policies. Individuals who seek the opinion of experts might fare better in becoming informed about the nature of the goods and services they consider, including the fine print. Of course, these general evaluations would not help individuals in selecting products and services whose desirability depends on individual use patterns.
Unfortunately, even when (good) opinions data on fine print exist, there are still weak links in the chain of circumstances required for accurate consumer decision-making articulated by Ben-Shahar and Schneider. In particular, just as individuals fail to read fine print when it is disclosed, they do not seek out such specialized information intermediaries. In a study on consumer shopping for software online, for instance, only 0.1% of consumers accessed a software product review while shopping for software (which is essentially the same rate at which shoppers read disclosed end-user license agreements). Also, in a sample of over 48,000 shopping visits, not a single shopper visited any of the specialized sites that discuss contract terms, including EULAs and other fine print. The fact that millions of people access Amazon.com and TripAdvisor daily is not a defense here; this discussion concerns the likelihood that consumers will seek out advice on fine print, not the overall product itself.
This is not surprising. As the authors suggest in their book, this behavior might be perfectly rational. It might also be perfectly rational for reviewers to ignore the fine print. After all, it seems unlikely than an arbitration clause, or a restriction on reverse engineering, will affect an individual’s purchase decision. Whether and what to do about the terms that are ignored but which might affect substantive rights of individuals later is an important question that needs to be addressed, especially given the current challenges to class action litigation. What seems clear is that, just as disclosure, opinion ratings, while superior in some respects, might not offer a fully satisfying solution to this problem. Or at least not yet.
Overall, the book offers a comprehensive and compelling indictment against mandatory disclosure, the most popular regulatory technique in consumer protection. It is a terrific read and a much-needed contribution to existing debates on consumer protection. While there is no perfect solution to the problems of fine print, Ben-Shahar and Schneider offer new and thought-provoking ideas to move the debate forward.
Monday, September 22, 2014
This is the seventh 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 second week's contributors can be found here. The authors' introduction to the symposium can be found here.
Nancy Kim is the ProFlowers Distinguished Professor of Internet Studies and Professor of Law at the California Western School of Law and also a Visiting Professor at the Rady School of Management at the University of California, San Diego.
Omri Ben-Shahar and Carl E. Schneider ‘s book, More Than You Wanted to Know: The Failure of Mandated Disclosure (Princeton, 2014), canvasses a wide variety of disclosures and concludes that as a policy, mandated disclosure is a spectacular failure. Businesses spend resources drafting disclosures that consumers fail to read. Furthermore, these ubiquitous disclosures may end up harming consumers by providing a protective shield around businesses. Ben-Shahar and Schneider explain why consumers fail to read, why politicians prefer it as a regulatory scheme, and why they believe that efforts to fix disclosure are destined to fail.
While I agree with much of what the authors say about disclosure, I disagree that disclosure in an abject failure in all cases or that disclosure as a regulatory policy is destined to fail. What they call “disclosure” includes all types of information – contracts, prescription labels, credit card statements, food labels - in different type of situations conveyed in different ways. They sweep too much under the umbrella of “mandated disclosure,” and so paint a picture of a failed regulatory approach with too broad a brush. In some cases, consumer have benefitted from streamlined presentation, plain English and limited information. Studies indicate that there are ways to get consumers to read disclosures, such as by making notices shorter, changing the presentation of terms, and allowing them to alter or select terms. The authors acknowledge that in some cases disclosures has proven effective but don’t delve into details. Rather than exploring how to make disclosure more effective, the authors say disclosure cannot be made effective.
Ben-Shahar and Schneider argue that mandated disclosure is a “failure,” and as proof of that, they offer examples of the failure of consumers to read and understand disclosure. Putting aside for a moment the issue of whether disclosures could be presented in a more noticeable and understandable way, I’m skeptical that the failure of consumer reading is the best way to measure the efficacy of mandated disclosure. The obligation to disclose, the burdensome task of determining what information should be disclosed and the drafting and disseminating of that information, likely have benefits apart from whether consumers read the terms. The requirement of disclosure may deter or restrain companies from acting in socially harmful ways. It may also force companies to reconsider the way they do business. Government mandated disclosures concerning the processing of foods and food ingredients have resulted in businesses eliminating certain practices (e.g. caging chickens) or ingredients (e.g. hydrogenated fats). Thus, the process of disclosing may itself have positive regulatory effects on the business not because the consumer has policed the terms, but because the fear of disclosing has forced the company to self-regulate. True, disclosure may not always work, but it’s unhelpful to make such broad generalizations about mandated disclosure’s efficacy without honing in on a particular industry or type of discloser. Some disclosure works in some cases and more research should be conducted on how to make certain disclosures more effective. Lengthy technical jargon and legalese typically fails, but visual imagery, text boxes and concise language may work at least for some products and services. There is a difference between a disclosure that provides consumers with information on a medical procedure and one that seeks to bind a customer to contractual obligations. [In an example of an effective mandated disclosure, I refrained from purchasing this nice baking tin when I saw this notice at right:
The authors provide many useful examples of failed disclosure mandates but they provide no alternatives. They argue that mandated disclosure “accomplishes so little that eliminating it would deny few people anything.” In essence, what they mean when they argue that mandated disclosure should be abolished is that the burdens that mandated disclosure places upon businesses and other disclosing entities (such as doctors) should be borne instead by legislators, regulators, the judiciary and consumers themselves.
The problem with this approach is that businesses are typically in the best position to know what information needs to be disclosed and often in the best position to bear the costs of disclosure. Consumers may be able to get information about a product or service through online reviews, for example, but that puts the burden on consumers to sift through the reviews and assess their veracity.
Ben-Shahar and Schneider are unconcerned about the societal ramifications of doing away with mandated disclosure, but there could be serious consequences for both businesses and consumers. The problems of adequate disclosure (what, how much, when) that Ben-Shahar and Schneider delve into in great detail don’t go away because disclosure is not mandated. For example, let’s assume that there is a miniscule chance of a serious side effect from taking a prescribed drug. The drug has great benefits except in rare instances. If the doctor prescribes the drug to the patient without disclosing the potential for this side effect, and the patient suffers greatly, what would happen? Neither the physician nor the company has violated a mandated disclosure requirement but that doesn’t mean they won’t be held liable for injuries to this patient resulting from the drug. If the patient sues, the doctor and/or the drug company are subject to the ex-post analysis of a jury comprised of consumers. The focus then is on the suffering of the sympathetic plaintiff and who should bear the costs of the suffering, and not the adequacy of the disclosure. Is this a better net result for society than the current system of disclosure? Or do the authors intend that “no mandated disclosure” should mean no cause of action and no remedy for the injured plaintiff? To put it bluntly, is a “no-mandated disclosure” regime a free pass for businesses? Or is it a green light for class action attorneys? Neither sounds appealing.
More Than You Wanted to Know is a powerful argument against mandated disclosures. Ben-Shahar and Schneider exhaustively and effectively chronicle the problems and significant costs of mandated disclosure. The costs of getting rid of mandated disclosure, however, may be even greater.
This week we will continue 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.
Last week we had six contributions:
This week, the symposium will include contributions by the contracts law scholars introduced below:
Nancy Kim is the ProFlowers Distinguished Professor of Internet Studies and Professor of Law at the California Western School of Law and also a Visiting Professor at the Rady School of Management at the University of California, San Diego. Prior to joining the faculty at California Western in 2004, Professor Kim was Vice President of Business and Legal Affairs of a multinational software and services company. She has worked in business and legal capacities for several Bay Area technology companies and was an associate in the corporate law departments at Heller, Ehrman, White & McAuliffe in San Francisco and Gunderson, Dettmer in Menlo Park.
Professor Kim currently serves as Chair of the section on Contracts and as a member of the executive committee of the section on Commercial and Related Consumer Law of the American Association of Law Schools. She is a contributing editor to the ContractsProf Blog, the official blog for the AALS Section on Contracts. Her scholarly interests focus on culture and the law, contracts, women and the law, and technology. She is the author of WRAP CONTRACTS: FOUNDATIONS AND RAMIFICATIONS (Oxford University Press, 2013) which examines how contracts control consumer behavior, especially online, and what this means for society. Professor Kim is an elected member of the American Law Institute.
Some of her scholarly papers can be found on SSRN here.
Florencia Marotta-Wurgler is a professor of law at New York University School of Law. Her teaching and research interests are contracts, consumer privacy, electronic commerce, and law and economics. Her published research has addressed various problems associated with standard form contract online, such as the effectiveness of disclosure regimes, delayed presentation of terms, and whether people read the fine print. Her current projects focus on empirical analyses on consumer privacy policies online. Professor Marotta-Wurgler has testified before the U.S. Senate Committee on Commerce, Science, and Transportation and is an associate reporter of the American Law Institute's Third Restatement of the Law of Consumer Contracts.
Some of her scholarly papers can be found here.
Daniel Schwarcz is an Associate Professor of Law and the Solly Robins Distinguished Research Fellow at the University of Minnesota Law School. Professor Schwarcz's research primarily focuses on consumer protection and regulation in property/casualty and health insurance markets. His articles have been published, or accepted for publication, in the University of Chicago Law Review, Virginia Law Review, Minnesota Law Review, North Carolina Law Review, William and Mary Law Review, and Tulane Law Review. Additionally, he is the editor of a book entitled, The Law and Economics of Insurance and recently joined the casebook, Abraham's Insurance Law and Regulation, which has been used as the principal text in courses on insurance law in more than 100 American law schools. In 2011, his article, "Reevaluating Standardized Insurance Policies," received the Liberty Mutual Prize for an exceptional article on insurance law and regulation.
Professor Schwarcz teaches insurance law, health care regulation and finance, contract law, and commercial law. He was named the Stanley V. Kinyon Overall Teacher of the Year for 2011-2012 and the Stanley V. Kinyon Tenure-Track Teacher of the Year for 2007-2008. Additionally, he serves as a Funded Consumer Representative to the National Association of Insurance Commissioners and has served as an expert witness in multiple insurance-related disputes.
Links to Professor Schwarcz's academic papers can be found on SSRN here.
Jeff Sovern is a Professor of Law at St. John’s University in New York City where he teaches Consumer Protection, among other subjects. The New York Times has called him "an expert in consumer law," a statement echoed by the Chicago Tribune, and Mother Jones. He is a co-coordinator of the Consumer Law and Policy Blog, and the co-editor of the Consumer Law Abstracts Journal for the Social Science Research Network. He co-authored a casebook titled Consumer Law: Cases and Materials (4d ed. 2013 West) with Professors John A. Spanogle, Ralph J. Rohner, Dee Pridgen, and Christopher Peterson, with whom he also co-edited Selected Consumer Statutes(2007, 2009, 2011, and 2013 editions). He has published numerous op-eds, including in The New York Times (here and here). He has authored many law review articles on consumer law issues, one of which was listed in Martha Minow’s Archetypal Legal Scholarship: A Field Guide, 63 J. Legal Education 65 (2013) as an example of archetypal policy analysis. The American Council on Consumer Interests awarded Professor Sovern the Russell A. Dixon Prize in 2002 and the 2010 Applied Consumer Economics Award. Sovern has also spoken at many conferences. His full bio can be found here.
David C. Vladeck is a Professor of Law at Georgetown University Law Center, where he teaches federal courts, civil procedure, administrative law, and a seminar on First Amendment litigation. Professor Vladeck recently returned to the law school after serving for nearly four years as the Director of the Federal Trade Commission’s Bureau of Consumer Protection. At the FTC, he supervised the Bureau’s more than 430 lawyers, investigators, paralegals and support staff in carrying out the Bureau’s work to protect consumers from unfair, deceptive or fraudulent practices. Before joining the law school faculty full-time in 2002, Professor Vladeck spent over 25 years with Public Citizen Litigation Group, a nationally-prominent public interest law firm, handling and supervising a complex litigation. He has briefed and argued a number of cases before the U.S. Supreme Court and more than sixty cases before federal courts of appeal and state courts of last resort. He is a Senior Fellow of the Administrative Conference of the United States, and an elected member of the American Law Institute. He also serves on the boards of the Natural Resources Defense Council and the National Consumers Law Center. Professor Vladeck frequently testifies before Congress and writes on administrative law, preemption, First Amendment, and access to justice issues.
A list of Professor Vladeck's publications can be found here.
At the end of the week, our authors will return to respond to their critics, and there may be some surprise appearances by others as well, so stay tuned!
Thursday, September 18, 2014
This is the sixth 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.
Lauren Willis is Professor of Law at the Loyola Law School, Los Angeles.
More than You Wanted to Know: The Good, The Bad, and The Ugly
The Good: Omri Ben-Shahar and Carl Schneider’s critique of the ability of mandated disclosure to directly equip consumers to make good complex choices in today’s marketplace is excellent. Consumers usually do not read, or if they read they usually do not understand, or if they understand they usually fail to use or even misuse mandated disclosures.
Moreover, many disclosures do affirmative harm. As I have explained elsewhere, disclosures are a sword with which disclosers disarm consumers into believing that the law protects them more than it does and a shield with which disclosers deflect consumer complaints when the transaction causes harm. Disclosures almost certainly impose regulatory opportunity costs, giving policymakers and consumer advocates illusory gains to point to when they go back to their constituencies. The costs of mandated disclosures are in many instances high, and those costs must be confronted.
While the explanations and arguments in the book are not novel, they are made more accessible to non-academic audiences than prior treatments and are put together in such a way that the sum is greater than its parts. Several passages in the book brilliantly capture points others have made, but not nearly so well. For example, at 74:
Few things make you feel less autonomous than studying a choice that hourly becomes more convoluted and confusing. You feel even less autonomous on realizing that you may never understand. And less autonomous still when you realize that the choice is essentially illusory. The kind of control over life’s choices that disclosurism seems to promise is an illusion.
The authors’ use of the choice between a treatment with a low chance of success but a low risk of death and a treatment with a high chance of success and a high risk of death to illuminate tradeoff difficulty (at 109) is very effective. Their explanation of the problem with anecdotal evidence – “[t]rouble stories, then, may tell us something about the numerator but not the denominator” (at 142) – is ingenious. And their photo of the 32-foot iTunes “scroll” perfectly captures the absurdity of this disclosure for a 99- cent transaction.
The book favorably and copiously cites my work, so perhaps I ought not criticize, but a review would be dull without The Bad:
As perhaps inevitable in a book hoping for popular consumption, the authors overstate their case, branding all mandated disclosure as useless or harmful. But disclosure is neither a panacea nor a poison.
Disclosures intended not to help consumers make complex decisions but to nudge their behavior in a particular direction can work. “Contains peanuts” is a disclosure that likely saves lives. The relevant consumers are highly motivated, sellers have no reason to hide the disclosure, and the information is provided at a point in time and in a manner that makes it easy to use for most consumers. Graphic disclosures have been effective in reducing smoking abroad. A picture of a wilted cigarette next to the word “impotent” appears to be a sufficient turn-off. Unit pricing disclosures at grocery stores facilitates comparative price shopping. More people can and will shop for the cheapest peas when someone else has done the math, likely increasing price competition to the benefit of all who shop at that store. “Smart” disclosure of energy consumption reduces energy use substantially. When people can see in real time that their electricity use is spiking, they can identify which appliances are energy hogs and many scale back use.
Disclosure can also work in more circuitous ways. Some, such as securities disclosures, work through sophisticated third party intermediaries. Others may work because they facilitate competition. Prior to mandated disclosure, firms had no way to credibly compete on trans fat content. But after the mandate, firms were able to advertise “no trans fat” on the front of packages to garner market share, even if most consumers did not read the mandated Nutrition Facts label on package backs.
The trans fat disclosure story may hold another lesson as well. It may have provided a bridge to a ban on trans fat that would have been politically impossible without consumer awareness of the issue, driven by the marketing enabled by the mandated disclosure. In addition, the disclosure regime gave firms an incentive to adapt over time, time firms used to reconstitute products without trans fat and even to develop new seed crops that produce oils that replace trans fat. The imminent national ban on trans fat is thus much less painful for firms and consumers than it would have been without a period of mandated disclosure.
Of course, in each of these examples disclosures faced conditions conducive to efficacy. Cigarettes cause not only long-term health problems that people ignore, but also short-term impotence that grabs attention. The market for peas is structured so that a minority of consumers can likely create price competition, at least within pea product classes (organic peas, petite peas, organic petite peas). Securities transactions are lucrative enough to support third party intermediaries. Enough social awareness of diet and fat existed for consumers to take notice of “no transfat” marketing. But all this is the point: under some conditions disclosure improves welfare and the trick is to limit its use to those conditions, whether previously existing or created by regulation.
In the introduction, the authors assert that disclosure is a “fundamental failure” (at 12) because it “fails to achieve its ambitious goals” (at 6). But policymakers’ grand expectations cannot be the right metric. The authors then assert that “the relevant issue is whether this kind of regulation does more good than harm” (at 13, emphasis added). Social welfare is the right metric, but the costs and benefits of disclosure cannot be assessed devoid of context. “This kind of regulation” may often fail, for all the reasons the authors claim and more, but without a careful examination of the effects of any particular disclosure, the authors cannot conclude that any particular disclosure is a failure.
Recent research on the CARD Act brings this point home. The Act requires issuers to include in accountholders’ monthly statements a chart that states (a) the amount of interest they will save if they pay down their existing debt in 3 years rather than making only the minimum payment and (b) the amount they need to pay monthly so as to retire their debt in 3 years. This disclosure appears to cause more accountholders to increase than to decrease their monthly payments, and thus leads consumers to pay less interest than they would otherwise have paid. The benefits of the disclosure are not dramatic (affecting, at most. .5% of accountholders and saving, on average, only $24 per accountholder affected). But the costs of adding the disclosure to the monthly statement, even if it does crowd out other information, are likely to be even smaller. Whether the disclosure crowds out better regulation is a more difficult to question to answer, one that depends on identifying policies that would entail fewer costs and/or produce more of the benefit policymakers seek. As Ben-Shahar and Schneider recognize, identifying such alternative policies is a task beyond the scope of this book.
And what about The Ugly? There is none. The book is a delightful read, as anyone who knows the wit and charm of the authors will not be surprised to hear. It should be required reading for policymakers and for consumer and patient advocates who, through comfortable familiarity in addition to the political and practical pressures the authors describe as the driving forces behind the use of disclosure, have become overly enamored of the tool. The book is chock full of wonderfully accessible yet nuanced examples and spot-on accounts of human thinking and feeling. Sometimes the authors over-generalize their privileged male perspective (contrary to their assertion, not all academics think they are more productive than their colleagues; female and minority professors of both genders notoriously underestimate their contributions). But the writing is honest to the authors’ own experience throughout, overcoming another fantasy of the privileged – that because we can understand and use (or think we can understand and use) the disclosures we encounter, the disclosures are, or have the potential to be, efficacious for the population as a whole. Kudos, gentlemen, kudos.
Wednesday, September 17, 2014
This is the fifth 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.
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 (Oxford University Press), explores the costs and benefits of the legal recognition of and sensitivity to friendship.
Is Omri Ben-Shahar a Duncan Kennedy in Disguise?
I couldn’t help but feel that the thrust of the argument against mandated disclosure for consumers in Omri Ben-Shahar & Carl Schneider’s More Than You Wanted To Know was one I have come to associate with Duncan Kennedy’s argument against unconscionability doctrine in contract law: it is liberal apologism, a convenient “solution” that large corporations and their political shills can tolerate and accommodate – and one that distracts attention from real regulatory solutions that could actually help those we are feeding with a tool they almost surely can’t use well. As with the crumb of unconscionability doctrine (and its meager remedies) which may divert regulators from more full-throated efforts to curb exploitation in consumer form contracts, mandating disclosure similarly seems like it might enable regulators to feel they are getting something done, all while failing to realize just how little piles of aggregated disclosures do for the average consumer or patient. By removing from the menu an option (unconscionability or mandatory disclosure) that provides false comfort about our clean capitalist markets being one of nondomination and full information, we might have a chance at increasing the friction and conflict in our markets, which could lead to a regulatory revolution, solving the things that truly ail us in capitalist life. This final step in the argument is what Kennedy took to outdo Arthur Leff’s basic criticisms of unconsionability.
It may seem odd putting Ben-Shahar from Team L&E side-by-side with Kennedy from Team CLS. But the morphological similarities of their arguments actually also help distill part of what doesn’t fully work about the argument: allowing the perfect to be an enemy of the good. Abandoning the strategy of mandated disclosure may be throwing out the baby with the bathwater. And if the political system is biased in favor of a certain class of disclosers and consumers that actually can make sense of the disclosures (one of Ben-Shahar & Schneider’s nice observations is that disclosure tends to have distributional consequences even among the class of consumers, favoring the rich and well-educated), it is hard to imagine that removing disclosure as a regulatory option will really open the pathway to stick it to the haves.
It is no doubt true – and one would be especially convinced after reading Ben-Shahar & Schneider’s well-executed book – that we have way too much mandated disclosure in our lives that disclosers, consumers, and politicians use badly. But despite overwhelming evidence that disclosure does badly in lots of contexts, using lots of different metrics (consumer knowledge, retention of information, consumer protection, actual terms), it would seem useful to highlight one success story that could help be a benchmark for when disclosure is, after all, a useful response to a regulatory problem and can be done well. The book spends most of its pages debunking failed strategies – but still leaves open the possibility that disclosure could really be different and productive in some areas. One is left to wonder what might count for Ben-Shahar & Schneider as a success story. We know for them it has to give the consumer information they can use to help structure her decision-making.
My favorite example of a “disclosure” – though it is not properly in the mandatory category – that really seems to give the consumer very useful information about the limitations of the product she is buying (facilitating informed decision-making) is the relatively new practice among a series of travel websites to offer (often opt-out) travel insurance at check-out when a consumer purchases a nonrefundable fare. This gives customers what Ryan Calo might call “visceral notice” that their fares will not be easily transferable or changeable – and that they will need to purchase insurance to get some of the benefits that airline tickets used to provide as a matter of course. This is an effective way to let customers know about a new limitation to air travel; even when they don’t buy the insurance, they “get” that insurance is necessary for certain flexibility that was once included in the price of air travel. By being presented with that (often opt-out) choice at checkout, customers’ reasonable expectations are reset. The customer knows what she is getting. More “visceral notice” of this form could be a productive future for mandated disclosure.
Yet even with one or two success stories Ben-Shahar & Schneider still have an important point to make: disclosures – even good ones – add up and inure the customer or patient to the whole lot of them. (Apologies to the authors, but I just can’t use the preferred neologisms in the book: disclosee, disclosurite, disclosurism.) Someone has to be curbing the proliferation or it is all static, the harder it is to hit the viscera.
But Ben-Shahar & Schneider do a little overselling of the “accumulation problem,” I think. To be sure, if mandatory disclosures come at us from state, judicial, federal, and administrative law, it is hard to imagine that we can pare down disclosures just to the effective ones without overwhelming the customer or the patient. But some focus in the world of mandated disclosure surely could be made at least within the federal system through the Office of Information and Regulatory Affairs (OIRA), which centralizes regulatory review in the Executive Branch. Indeed, notwithstanding the beating Professor Cass Sunstein takes in some sections of the book, former Administrator Cass Sunstein issued several memoranda that sought to put the OIRA in a role that promoted smart disclosure and carefully weighing the costs and benefits of different forms of disclosure. These are ultimately the real desiderata Ben-Shahar & Schneider support when they are not being purposefully provocative: weigh the costs and benefits of even smart disclosure. Although I have recently been critical of the process Administrator Sunstein used to develop his “quasi-regulations” on smart disclosure and simplification in a forthcoming paper with Nestor Davidson (Regleprudence – at OIRA and Beyond, 103 Geo. L.J. (forthcoming 2015)), there is little doubt that Ben-Shahar & Schneider could be selling their ideas to the new Administrator at OIRA who might be able to make real headway on the “accumulation problem,” subjecting many administratively designed disclosure regimes to the crucible of cost-benefit analysis.
Ultimately, I understand why the authors’ years of study have soured them on mandated disclosure. Their story is a dispiriting one: there are political economy problems, accumulation problems, cognitive bias problems, and innumeracy and illiteracy problems that all conspire to leave a reasonable person pessimistic about the future of mandated disclosure. But there is no revolution here in the offing. Best to focus on pointy-headed efforts at OIRA and clever visceral disclosures that get us in the gut.
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.