Reading the Product: Warnings, Disclaimers, and Literary Theory
Yale Journal of Law & the Humanities, Vol. 22, pp. 393-415, 2010
24 Pages Posted: 3 Jun 2010
Date Written: June 3, 2010
The conventional wisdom among some scholars and courts seems to be that product warnings and disclaimers are ineffective – that even if problems with font, location, and other visual elements are resolved, consumers are unable to process these messages. Behavioral economists explain this difficulty by cataloging the various ways in which consumers fail to appreciate risk: cognitive biases, willful ignorance, or the overwhelming appeal of advertising. And yet, the law hasn't abandoned reliance on warnings or disclaimers. Product liability law not only encourages their presence but (in a failure-to-warn case) expects consumers to read and understand them. Courts in trademark infringement cases will, on occasion, order a disclaimer when they feel that important speech-related interests are at stake. And the Supreme Court has suggested the use of disclaimers in several First Amendment-related (albeit not product-related) cases. This conflicted approach is a bit puzzling: If these messages are truly useless, then we might expect courts to abandon reliance on them as any sort of an effective remedy or as considerations in whether the defendant has acted reasonably. The fact that courts haven't done so suggests that courts do not believe that such messages are useless. If that is the case, perhaps we should find ways to increase the chances that such messages are presented effectively, rather than having our initial response be one of skepticism and doubt.
While behavioral economics has contributed many important insights in this regard, literary theory provides an additional consideration. This piece, written for a symposium titled “Reasoning from Literature,” suggests that by recognizing that warnings and disclaimers are “texts” (in the literary theory sense) – and by taking advantage of recent marketing literature on “reading” advertisements – we might well discover that drafting the warning or disclaimer in a particular way may solve some of consumers’ interpretive problems. In other words, to the extent that the conventional wisdom is predicated on a belief that consumers don't have the ability to process these types of contradictory messages, literary theory counters this belief by explaining how readers interpret parody and other similar texts. It also tells us that the most effective way to yield a preferred meaning among readers, given that each reader will bring her own meaning to the table, is to appeal to context and interpretive communities to encourage similar patterns of reading such texts.
Keywords: disclaimers, warnings, products liability, trademark, literary theory, reader-response, marketing, advertising
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