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.
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. …