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159 U. Pa. L. Rev. 647 (2010-2011)
The Failure of Mandated Discourse

handle is hein.journals/pnlr159 and id is 653 raw text is: ARTICLE THE FAILURE OF MANDATED DISCLOSURE OMRI BEN-SHAHARt & CARL E. SCHNEIDER This Article explores the spectacular prevalence, and failure, of the single most common technique for protecting personal autonomy in modern society: mandated disclosure. The Article has four Parts: (1) a comprehensive sum- mary of the recurring use of mandated disclosures, in many forms and circums- tances, in the areas of consumer and borrower protection, patient informed con- sent, contract formation, and constitutional rights; (2) a survey of the empirical literature documenting the failure of the mandated disclosure regime in informing people and in improving their decisions; (3) an account of the multitude of reasons mandated disclosures fail, focusing on the political dy- namics underlying the enactments of these mandates, the incentives of disclosers to carry them out, and, most importantly, on the ability of disclosees to use them; and (4) an argument that mandated disclosure not only fails to achieve its stated goal but also leads to unintended consequences that often harm the very people it intends to serve. INTRODUCTION......................................................................................649 A. The Argument ................................................................. 649 B. The Method..................................................................... 651 C . The Style......................................................................... 652 I. THE DISCLOSURE EMPIRE: THE PERVASIVENESS OF MANDATED DISCLOSURE...................................................................................652 t Frank & Bernice J. Greenberg Professor of Law, University of Chicago. t Chauncey Stillman Professor of Law & Professor of Internal Medicine, Universi- ty of Michigan. Helpful comments were provided by workshop participants at The University of Pennsylvania, Georgetown University, The University of Michigan, Tel- Aviv University, and the Federal Reserve Banks of Chicago and Cleveland. Financial support from the Olin Program at the University of Chicago and the Elkes Fund at the University of Michigan is gratefully acknowledged. (647)