Attention and the Law
43 Pages Posted: 23 Jul 2019 Last revised: 29 Jul 2019
Date Written: July 21, 2019
Human attention has become one of the most scarce — and therefore most valuable — resources in modern economies. Yet current legal doctrine and discourse pay far too little attention to attention. As a result, different bodies of law have evolved inconsistent rules for dealing with the same subject matter. Worse yet, a number of fields — including contract, antitrust, property, and privacy law — exhibit internal contradictions and coverage gaps. These shortcomings manifest across a diverse array of institutional actors: legal theorists have left vital questions unanswered, courts have issued nonsensical and conflicting opinions, and regulatory agencies have neglected their congressionally mandated duties and allowed massive societal-welfare harms to go unchecked.
This Article describes this suboptimal state of affairs 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 significant policy changes: increased antitrust oversight of attention markets, “price” caps and Pigouvian taxes on attention consumption, and the development of property rights in attention. It concludes with a broad call to action: legal scholars and stakeholders across a wide variety of disciplines must begin paying more attention to attention.
Keywords: attention markets, attention merchants, attention intermediaries, advertising, antitrust, privacy, property, property rights
JEL Classification: D00, D01, D03, D11, D21, D43, D60, K00, K11, K12, K21
Suggested Citation: Suggested Citation