Less Than I Wanted To Know: Why Do Ben-Shahar and Schneider Attack Only \u27Mandated\u27 Disclosure?

This essay responds to a new book by Omri Ben Shahar and Carl E. Schneider, entitled MORE THAN YOU WANTED TO KNOW: THE FAILURE OF MANDATED DISCLOSURE (Princeton, 2014). The book is an elaborate disclosure of why disclosure fails. It is hard to disagree with the fact that widespread deficits in consumer reading, understanding and decisionmaking undermine the efficacy of disclosures, and the book provides plenty of data to show this. But the authors do not much confront the fact that many mandates for disclosures are a response to what happens when firms are free to design their own fine print. The same consumer decisionmaking deficits the authors here elaborate exist when the disclosure (allegedly contractual) is created by private firms; and firms take advantage of those deficits. If mandated disclosure is abandoned, as the authors recommend, do the authors think recipients of bad boilerplate should just be on their own? The authors did not consider that question as part of their project in this book

The Deformation of Contract in the Information Society

The HLA Hart Memorial Lecture delivered at Oxford on May 24, 2016. The Lecture considers how the advent and growth of the information society is posing challenges for the traditional theories of contract, and for the duties of the State with regard to contractual ordering. In particular, the Lecture considers the lack of ‘fit’ between certain prevalent uses of contract and the underlying justification for contract enforcement

Humans, Computers, and Binding Commitment

Addison C. Harris Lecture at the Indiana University School of Law-Bloomington on October 26, 1999

Boilerplate Today: The Rise of Modularity and the Waning of Consent

Thanks to the vision of Omri Ben-Shahar and the excellence of the scholars contributing to this symposium, students of the law of commercial exchange transactions will now understand how important and interesting, and indeed exciting, boilerplate really is. The various presentations are so rich that my assigned task of commentary cannot approach an adequate summation. Instead of attempting such a task, therefore, I will take up a slightly different one. My commentary will relate some of the ideas presented in the symposium to two themes that I think are significant for the groundwork of contract today: the growing modularity of contracts and the waning of consent as the normative basis of legal enforcement. (The latter is also a major theme of my fellow commentator, Todd Rakoff, whose contributions in this field have been preeminent.) In conjunction with these two themes, I will touch upon the interplay of standardization and customization; the dialectic of rules and standards; the collapse of the distinction between the contract and the product it relates to; the problem of shoring up (or replacing?) the liberal notion of freedom of the will; and the allied issue of the political status of the regime of private ordering

Less Than I Wanted To Know: Why Do Ben-Shahar and Schneider Attack Only \u27Mandated\u27 Disclosure?

This essay responds to a new book by Omri Ben Shahar and Carl E. Schneider, entitled MORE THAN YOU WANTED TO KNOW: THE FAILURE OF MANDATED DISCLOSURE (Princeton, 2014). The book is an elaborate disclosure of why disclosure fails. It is hard to disagree with the fact that widespread deficits in consumer reading, understanding and decisionmaking undermine the efficacy of disclosures, and the book provides plenty of data to show this. But the authors do not much confront the fact that many mandates for disclosures are a response to what happens when firms are free to design their own fine print. The same consumer decisionmaking deficits the authors here elaborate exist when the disclosure (allegedly contractual) is created by private firms; and firms take advantage of those deficits. If mandated disclosure is abandoned, as the authors recommend, do the authors think recipients of bad boilerplate should just be on their own? The authors did not consider that question as part of their project in this book