Reaching Disclosure

By Schneider, Carl E. | The Hastings Center Report, January-February 2005 | Go to article overview

Reaching Disclosure


Schneider, Carl E., The Hastings Center Report


It is easy to forget but crucial to remember that when lawmakers decide to regulate an activity, they must select a method. The law of bioethics particularly favors one method--requiring disclosure of information. The doctrine of informed consent obliges doctors to tell patients their treatment choices. The administrative law of research ethics insists that researchers warn subjects of the risks of experiments. The Patient Self-Determination Act compels medical institutions to remind patients about advance directives. The federal government's new privacy regulations instruct medical institutions to describe their privacy regime to patients.

Not just the law of bioethics, but health law in general, repeatedly recruits disclosure requirements. For example, they are central to the recurring proposals for patients' bills of rights. Likewise, "virtually every bill ... to regulate managed care devotes major portions to information disclosure and dissemination." (1) Proposals for "consumer-directed health care" tantalize us with the dream that well-informed patients can make markets for health care work effectively.

If disclosure requirements are popular, surely they are effective? Don't people making decisions need information, want it, and use it? Doesn't an irresistible array of arguments justify disclosure rules? The moral rationale for disclosure is that it liberates people from the servitude to others that ignorance creates. The prophylaxis rationale assumes that people can be deterred from abusing each other by requiring predators to warn the prey. The market rationale holds that the production and allocation of goods are best regulated through markets and that markets work best when purchasers know most. The welfare rationale suggests that one way to enhance people's well-being is to give them the information they need to protect themselves.

Perversely, there is good reason to doubt that disclosure requirements in health law work as intended. One way to assess disclosure rules in health law is to ask whether they succeed in the many other areas of law that require them. Are people buying worthless stocks? Securities laws say, "Disclose!" Are people borrowing money at usurious rates? Consumer protection laws say, "Disclose!" Are people injured by things they buy? Products liability law says, "Disclose!" Are police bullying criminal suspects into waiving their rights? Miranda says, "Disclose!"

Roughly speaking, the goal of disclosure requirements is to improve the decisions recipients make. The baseline for evaluation, then, is the quality of the decisions people would make were there no disclosure laws. Crudely defined, success means improving decisions enough to justify the costs of the disclosure requirement to the government, the disclosers, and the recipients.

If disclosure requirements prosper anywhere, it should be in securities markets, since they are dominated by institutions that have incentives and resources to exploit disclosed information. But even there, scholars cannot agree that companies would disclose less were there no securities laws (since companies have economic reasons to disclose information to investors) or that the disclosures that are made improve investors' decisions.

Nor is it clear that other disclosure regimes justify their costs. Take Miranda warnings. They "'have little or no effect on a suspect's propensity to talk ... Next to the warning label on cigarette packs, Miranda is the most widely ignored piece of official advice in our society.' ... Not only has Miranda largely failed to achieve its stated and implicit goals, but police have transformed Miranda into a tool of law enforcement." (2) And while the evidence of failure is hardly uniform, "the efforts of researchers to prove by scientific means that on-product warnings are indeed effective to modify safety-related behavior in actual or simulated real-world applications have generally yielded disappointing results. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Reaching Disclosure
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.