Disclosure as Distribution

17 Pages Posted: 21 May 2013 Last revised: 30 Jul 2013

See all articles by Jeremy N. Sheff

Jeremy N. Sheff

St. John's University School of Law

Date Written: May 21, 2013

Abstract

This brief Response to the work of Professors Omri Ben-Shahar and Carl Schneider on mandated disclosure regimes investigates the normative criteria underlying their claim that those regimes are failures. Specifically, it unpacks the pieces of those authors’ implicit cost-benefit analysis, revealing inherently normative judgments about desert and responsibility at the core of their (or any) critique of disclosure regimes. Disclosure regimes may aim to improve human decisionmaking behaviors, but those behaviors are influenced in non-deterministic ways by cognitive capacities that are heterogeneously distributed among subjects of the regimes. Accordingly, any claim regarding the normative desirability of disclosure regimes (or any other regulatory regime that seeks to channel and improve decisionmaking) implicitly rests on judgments regarding individuals’ responsibility for their own capacities. I argue that in evaluating such regulatory regimes, focusing on efficiency through cost-benefit analysis distracts from inescapable and logically prior distributive questions regarding desert and responsibility.

Suggested Citation

Sheff, Jeremy N., Disclosure as Distribution (May 21, 2013). 88 Washington Law Review 475 (2013); St. John's Legal Studies Research Paper No. 13-0010. Available at SSRN: https://ssrn.com/abstract=2267627

Jeremy N. Sheff (Contact Author)

St. John's University School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States
718-990-5504 (Phone)

Register to save articles to
your library

Register

Paper statistics

Downloads
48
Abstract Views
541
PlumX Metrics