Attention and the Law

Attention and the Law

By John M. Newman (University of Miami)

Abstract:   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 in scattershot fashion, developing formal rules that render them inconsistent with one another. Worse yet, a number of fields—including contract, antitrust, property, and privacy law—exhibit internal inconsistencies and coverage gaps. These shortcomings manifest in a variety of ways, across a diverse array of institutional actors and stakeholders: courts have issued nonsensical and conflicting opinions, agencies have misdirected resources and overlooked vast swaths of marketplace activity and societal-welfare harms, and legal theorists have left vital questions unanswered.

This Article describes the problematic current state of affairs and the urgent need for reform. It undertakes the foundational task of constructing a robust model of attention expenditure, attention depletion, and attention exchange. Drawing on these insights, the Article addresses several particularly salient normative ramifications for legal regimes and discourse. It proposes heightened antitrust oversight in 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 institutions and actors must begin paying attention to attention.

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