The Right to Attention

42 Pages Posted: 30 Apr 2015 Last revised: 12 Oct 2016

See all articles by Jasper Tran

Jasper Tran

University of Minnesota Law School

Date Written: April 29, 2015

Abstract

What marketing, contracts, healthcare — specifically informed consent and mandatory ultrasounds — have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective — e.g., how much information the communicator discloses — or on the information itself, but surprisingly, not much on the receiver’s perspective.

This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention because attention is a property right and part of our individual dignity. Yet advertisement companies and scam artists freely bombard us with their “products” daily resulting in our own time and monetary loss. Just to name a few, without recognizing the right to attention, contract formation and informed consent are hollow and superfluous: contracting parties have no meeting of the mind and informed consent is giving consent without being informed. States could continue to freely mandate ultrasounds for pregnant women against their wills as though their attentions were not really theirs in the first place. Similarly, other problems in our daily lives that involve attention would likely continue to go unaddressed. New emerging technologies make this an issue of increasing importance.

This paper proposes legislation to recognize the right to attention as a statutory right, or alternatively, suggests that the courts recognize the right to attention as a common law right based on the U.S. Constitution. Specifically, the right to attention’s much larger, as-yet-poorly-defined bundle of rights include, for example, the right to deny attention when demanded, the right to be left alone, the right to not be spammed and the right not to receive ads when such advertisement is unwanted or uninvited, the right to waive the understanding of an agreement, the right to give consent without being informed, and the right not to be required to receive information against one’s will.

This paper is the first to identify the right to attention, including its much larger, as-yet-poorly-defined bundle of rights. This paper hopes to identify and illuminate the right to attention in hope to generate further discussion and exploration of this novel bundle of rights.

Keywords: constitution, statutory, right, attention, law, economics, distraction, informed consent, mandatory ultrasound, contract formation, agreement waiver, marketing, ads, scams, spam, healthcare, legal theory

JEL Classification: D23, D63, J54, K11, P13

Suggested Citation

Tran, Jasper, The Right to Attention (April 29, 2015). Indiana Law Journal, Vol. 91, p. 1023, 2016. Available at SSRN: https://ssrn.com/abstract=2600463 or http://dx.doi.org/10.2139/ssrn.2600463

Jasper Tran (Contact Author)

University of Minnesota Law School ( email )

420 Delaware St. SE
Minneapolis, MN 55455
United States

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