Jesse Eisinger at ProPublica: “Louis Brandeis was wrong. The lawyer and Supreme Court justice famously declared that sunlight is the best disinfectant, and we have unquestioningly embraced that advice ever since.
All this sunlight is blinding. As new scholarship is demonstrating, the value of all this information is unproved. Paradoxically, disclosure can be useless — and sometimes actually harmful or counterproductive.
“We are doing disclosure as a regulatory move all over the board,” says Adam J. Levitin, a law professor at Georgetown, “The funny thing is, we are doing this despite very little evidence of its efficacy.”
Let’s start with something everyone knows about — the “terms of service” agreements for the likes of iTunes. Like everybody else, I click the “I agree” box, feeling a flash of resentment. I’m certain that in Paragraph 184 is a clause signing away my firstborn to a life of indentured servitude to Timothy D. Cook as his chief caviar spoon keeper.
Our legal theoreticians have determined these opaque monstrosities work because someone, somewhere reads the fine print in these contracts and keeps corporations honest. It turns out what we laymen intuit is true: No one reads them, according to research by a New York University law professor, Florencia Marotta-Wurgler.
In real life, there is no critical mass of readers policing the agreements. And if there were an eagle-eyed crew of legal experts combing through these agreements, what recourse would they have? Most people don’t even know that the Supreme Court has gutted their rights to sue in court, and they instead have to go into arbitration, which usually favors corporations.
The disclosure bonanza is easy to explain. Nobody is against it. It’s politically expedient. Companies prefer such rules, especially in lieu of actual regulations that would curtail bad products or behavior. The opacity lobby — the remora fish class of lawyers, lobbyists and consultants in New York and Washington — knows that disclosure requirements are no bar to dodgy practices. You just have to explain what you’re doing in sufficiently incomprehensible language, a task that earns those lawyers a hefty fee.
Of course, some disclosure works. Professor Levitin cites two examples. The first is an olfactory disclosure. Methane doesn’t have any scent, but a foul smell is added to alert people to a gas leak. The second is ATM. fees. A study in Australia showed that once fees were disclosed, people avoided the high-fee machines and took out more when they had to go to them.
But to Omri Ben-Shahar, co-author of a recent book, ” More Than You Wanted To Know: The Failure of Mandated Disclosure,” these are cherry-picked examples in a world awash in useless disclosures. Of course, information is valuable. But disclosure as a regulatory mechanism doesn’t work nearly well enough, he argues….(More)