Disclosure as Distribution

By Sheff, Jeremy N. | Washington Law Review, June 2013 | Go to article overview

Disclosure as Distribution


Sheff, Jeremy N., Washington Law Review


Abstract: This brief response to the work of Professors Omri Ben-Shahr and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors' implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any other regulatory regime that seeks to channel and improve decisionmaking) implicitly rests on judgments regarding individuals' responsibility for their own capacities. I argue that in evaluating such regulatory regimes, focusing on efficiency through cost-benefit analysis distracts from inescapable and logically prior distributive questions regarding desert and responsibility.

INTRODUCTION

Professors Ben-Shahar and Schneider have done legal scholars and policymakers a tremendous service by collecting, in one place,1 various clues and traces of an undeniable truth: that regulatory regimes built on the compelled disclosure of information are endemic, and can be problematic. Reviewing their comprehensive research, I find little if anything to add to their identification of various instances of mandated disclosure regimes, nor of their analysis of the practical effects of those regimes-certainly nothing beyond the points already raised by Professor Craswell in his response to their project.2 So instead, I would like to focus on the normative implications of the evidence and analysis Professors Ben-Shahar, Schneider and Craswell have assembled, an issue which still calls for further development. Like Professor Craswell, I will question whether the phenomenon of mandated disclosure-as documented by Professors Ben-Shahar and Schneider-can properly be characterized as a "failure," if only to clarify what we mean when we use such a pejorative term. 3

If mandated disclosure has failed, certainly we should be able to say with confidence what it has failed to do: to what end is mandated disclosure supposed to serve as a means? But beyond that, we will also have to defend that end as one worth attaining: some normative commitment must justify whatever ends the legal regime might serve. So the purpose of my response is both to expand on Professor Craswell's efforts to identify possible ends for mandated disclosure regimes, and to assess the normative commitments underlying those ends- commitments on which Craswell, Ben-Shahar and Schneider seem to agree, if only in their assumptions.

I. IDENTIFYING NORMATIVE SYSTEMS

In his symposium presentation, Professor Schneider identified two species of "disclosurites"-proponents of mandated disclosure.4 The first species, he explained, appears to be motivated by concerns over dignity or autonomy. They claim that there is a moral obligation to respect this principle of autonomy by providing information to disclosees, regardless of the disclosures' costs, or of their actual effects on the disclosees' decisionmaking.5 But assuming Professor Schneider's characterization of this species of disclosurite is accurate, as far as they are concerned one cannot characterize mandated disclosure as a failure at all. To the contrary, it accomplishes precisely what it should-it satisfies disclosers' moral obligations to respect disclosees' autonomy.

So with respect to the autonomy-based argument in favor of disclosure, Professors Ben-Shahar and Schneider are not really proving a failure, nor do I believe they claim to. Instead, they simply have a normative disagreement with some proponents of mandated disclosure, and have not attempted to justify their own normative framework as superior to the alternative espoused by those proponents. …

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

Disclosure as Distribution
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.