Deliberate Ignorance and the Law
Ralph Hertwig and Christoph Engel (eds.), Deliberate Ignorance: Choosing Not to Know (Forthcoming, Strüngmann Forum Reports, vol. 29, J. R. Lupp, series editor, MIT Press).
24 Pages Posted: 25 Jun 2019 Last revised: 28 Aug 2019
Date Written: June 19, 2019
This paper offers a bird’s-eye view of existing legal doctrines and institutions that overcome or foster deliberate ignorance, critically assesses these doctrines and institutions, and considers extensions thereof.
The first part of the paper focuses on three legal means of discouraging deliberate ignorance: (1) subjecting people who could have acquired the relevant information to the same treatment as those who acted knowingly; (2) imposing positive duties to acquire information; and (3) rendering information more conspicuous, thereby making it more difficult to ignore. It also touches upon the issue of collective ignorance.
The second part discusses instances in which the law encourages deliberate ignorance to facilitate better decision-making and promote other values in instances where full information might be detrimental. It starts from the basic issue of designing the system of government and constitutional protection of human rights using veils of ignorance, and then moves on to more specific legal topics. These include inadmissibility and other evidence rules, anonymity and omitted details of candidates to overcome decision-makers’ biases and prejudices, expungement of criminal records, and more.
Keywords: deliberate ignorance, willful blindness, informed consent, veil of ignorance, blinding, expungement, right to be forgotten, informed consent, settlements, plea bargains, collective ignorance, collective knowledge, constructive knowledge, inadmissibility
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