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 & BemiceJ. Greenberg Professor of Law, University of Chicago.
* 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.

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