Incomprehensible! makes two superbly clear claims. First, it describes a big problem: Mandated disclosures are so common, complex, and extensive that their intended audience cannot understand or use them. Second, it offers a solution, called “cooperative communication,” in which speakers must be “encouraged to communicate their messages in a way that the ‘reasonable or median target audience’ will understand.”
The key to the solution, the book explains, is to require disclosers to speak “effectively” and to “engage in meaningful communications.” This will ensure success because disclosures designed under such shifted responsibility will be informative and useful.
I do not dispute the first claim of the book. Five years ago, Carl Schneider and I published a book, More Than You Wanted to Know, which makes a similar claim about the failure of mandated disclosure laws. Incomprehensible! agrees with that thesis, which is not surprising, since the evidence for mandated disclosure’s failure is abundant. Information disclosure has been mandated across a wide range of practices with hopes of liberating people from ignorance and equipping them to make well-considered decisions. It continues to be the most common and least successful regulatory technique.
There are two possible responses to the failure of mandated disclosure. One, which Schneider and I recommended in our book, is to put scholarly efforts and ingenuity to more rewarding enterprises, such as developing better regulatory methods. But the more common response is to refuse to abandon mandated disclosure’s promise and potential, instead putting hope in various fixes.
The most common fix is to require the information disclosed to be simplified and delivered in a comprehensible manner. Commentators have advocated “smart” disclosure, “fair” disclosure, “meaningful” disclosure, and “lay-meaning” disclosure, and have developed criteria of best practices for simple information. It is to this simplification campaign that the book Incomprehensible! creatively contributes.
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