Attention Markets and the Law
48 Pages Posted: 23 Jul 2019 Last revised: 29 Jan 2020
Date Written: July 21, 2019
Human attention has become one of the most scarce—and therefore most valuable—assets in modern economies. Yet current legal doctrine and discourse have almost entirely overlooked attention markets. As a result, different bodies of law have developed inconsistent rules for dealing with the same subject matter. Moreover, a number of fields exhibit internal contradictions and coverage gaps. Thus, for example, antitrust and contract law have taken opposite positions on the very existence of attention exchanges. Property law and discourse have neglected the core question of whether attention is property, despite its striking similarities to other asset categories—in particular, information and labor—that have prompted robust debate. Contract-law cases have employed internally illogical reasoning, as has a leading privacy-law decision. Regulatory agencies have derogated their congressionally mandated duties and allowed massive societal-welfare harms to go unchecked.
This Article describes this disastrous state of affairs and demonstrates the urgent need for reform. Toward that end, it draws on psychology, neuroscience, and behavioral economics literature to construct a robust model of attention expenditure, depletion, and exchange. Building on these insights, the Article offers four normative proposals: increased competition-law oversight of attention markets, “price” caps and Pigouvian taxes on attention consumption, and the development of a property-law discourse on attention rights. It concludes with a broad call to action: legal disciplines must begin paying more attention to attention.
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
Suggested Citation: Suggested Citation