Chapter 4 delves into two efforts to reinforce consent: opt-in and informed choice. It illustrates why, in the information economy, they also fail. Power asymmetries enable systemic manipulation in the design of digital products and services. Manipulation by design thwarts improved consent provisions, interfering with people’s decision-making. People’s choices regarding their privacy are determined by the designs of the systems with which they interact. European and American attempts to regulate manipulation by changing tracking from ‘opt-out’ to ‘opt-in’ and reinforcing information crash on the illusion of consent. Contract law doctrines that aim to reduce manipulation are unsuitable because they assume mutually beneficial agreements, and privacy policies are neither. Best efforts to strengthen meaningful consent and choice, even where policies are specifically intended to protect users, ultimately are insufficient because of the environment in which privacy “decisions” take place.

This chapter contains intermediary results from the analysis on legal deficiencies identified in the accounting, corporate, and securities law. It focuses on the misguiding norm of adding new topics to disclosure agendas without careful consideration of the value the addition of information may bring. This leads to increased compliance costs, “boilerplate compliance,” and information overload. In addition, more information may give the impression of enhanced group transparency such as the amended disclosure regime for major holdings in listed companies, where the reality is that innovative business models still fly under the regulatory radar.

This final orientation chapter in Part I explores how a legal system that fails to account for comprehension asymmetries can exacerbate preexisting impediments to cooperative communication. After identifying those legal settings where comprehension asymmetries are likely to be most severe, the chapter concludes by suggesting general reforms that strengthen the speakers' incentives to communicate cooperatively with their audience.

This chapter explores "comprehension asymmetries," which occur when speakers have a greater ability to understand or process information relative to their target audiences. By synthesizing work from economics, communications theory, and information theory, we offer a simple conceptual model for understanding and locating comprehension asymmetries in legal programs.

Nobel prize-winning economist Herbert Simon warned more than 70 years ago that if we did not find a way to manage the flood of information that threatens to overwhelm us, we would find ourselves unable to make sense of it. This short introductory chapter explores the various ways that legal architects have failed to heed Simon's warning in legal areas as diverse as consumer protection, financial regulation, patents, chemical control, and administrative and legislative process. A number of significant legal programs in the U.S. are designed to facilitate the sharing of complete information, yet these programs often neglect to ensure that the information is also comprehensible to the target audience.