Regulating Attention Markets

Abstract

Attention has become one of the most scarce—and therefore most valuable—assets in modern economies. Humans now trade vast amounts of attention each day in exchange for an ever-growing variety of digital products and services. The global coronavirus pandemic drastically accelerated the redirection of activity into digital attention markets, elevating the importance of questions about their structure and regulation.

Yet the law has almost entirely overlooked the rise of the attention economy, even as various laws have played a constitutive role in shaping these markets. This Article is the first to undertake a broad survey of how general trade-regulating laws have treated attention exchange. As it reveals, a variety of legal fields ranging from property and contract to privacy and antitrust have developed cross-disciplinary conflicts, internal contradictions, and coverage gaps involving attention exchanges. Courts adjudicating diverse disputes have deployed fallacious reasoning to justify market-distorting outcomes. Federal agencies have derogated from their congressionally mandated duties, allowing broad-based societal welfare harms to go unchecked. In sum, attention markets are regulated, but that regulation has been haphazard and shoddy. The sole consistency is a systematic bias in favor of already-powerful attention intermediaries.

This Article describes the suboptimal current state of affairs and underscores the urgent need for reform. Toward that end, it draws on psychology and behavioral economics research to construct a model of attention expenditure and exchange. Building on these insights, it proposes a foundational set of policy recommendations for (re)regulating attention markets. The Article concludes with a call for scholarly action: effective policy-making will ultimately require the development of a more holistic normative framework than the neoclassical, rights-based rhetoric traditionally used by law-makers and regulators.

Keywords: attention markets, attention merchants, attention intermediaries, advertising, antitrust, privacy, attention and property, property rights in attention

JEL Classification: D00, D01, D03, D11, D21, D43, D60, K00, K11, K12, K21