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University of South Dakota School of Law

Tuesday, September 23, 2014

Ben-Shahar & Schneider Symposium Part IX: Daniel Schwarcz

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. SchneiderMore 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.

Schwarcz.Daniel.798-webDaniel 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. 

MoreFirst, 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. 

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