Attention Markets and the Law
45 Pages Posted: 23 Jul 2019 Last revised: 9 Oct 2019
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 this development. As a result, different bodies of law have evolved 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 directly opposing views on the very existence of attention exchange. Property law has failed to consider whether attention is property, despite its similarities to information and labor—both asset categories that have prompted robust debates among property analysts. Contract-law cases have employed internally illogical reasoning, as has a leading privacy-law decision. Regulatory agencies have neglected their congressionally mandated duties and allowed massive societal-welfare harms to go unchecked.
This Article describes these various crises and demonstrates the urgent need for reform. Toward that end, it undertakes the foundational task of constructing a robust model of attention expenditure, depletion, and exchange. Building on these insights, the Article proposes four policy changes: increased antitrust oversight of attention markets, “price” caps and Pigouvian taxes on attention consumption, and the development of property-law discourse on attention rights. It concludes with a broad call to action: legal analysts across a wide variety of 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