John Blomster: Welcome to DISCOVERY. I'm John Blomster. And today we are thrilled to be joined by Wendy Wagner, Richard Dale Endowed Chair in law at the University of Texas at Austin School of Law. Professor Wagner is a renowned scholar and leading authority on the use of science. And her research largely focuses on the intersection of law, science and its impact on greater society. She's also an award-winning author who has garnered honors both for publications and scholarly works. And her latest book, which we're discussing today, is called Incomprehensible: A Study of How our Legal System Encourages Incomprehensibility, Why it Matters and What We Can Do About It. The book examines the information overload epidemic in contemporary culture, not as a tech issue, but as one that is baked into the very legal architecture of American institutions. So this is really exciting and really interesting perspective on an issue that's very top of mine that we've talked about before.
So, Wendy, thank you very much for being here.
Wendy Wagner: Well thanks, John, for having me.
Blomster: You said you spent the better part of a decade researching and writing this book. What made you want to focus on this topic, specifically?
Wagner: So, I realized that my entire academic work really has been poking at this beast from a bunch of directions. So, cumulatively, I started to see a body of work that was getting at this problem. But the problem itself was something I was experiencing as an academic.
So, basically, the problem is that I've specialized for example, and environmental law, administrative law my entire life. And yet, I can pick up proposed bills in my area of, for example, chemical regulation, or I can read agency rules or proposed rules. And I can't make sense of them. They have literally escaped my ability to process and so it was really that personal experience combined with my own academic research that kind of created sort of a cascade down the mountain—an avalanche, so to speak—where I wanted to look further, kind of a mystery, and then I would poke around and see other people were seeing the same thing. Not only in administrative and environmental law, but in consumer contract law and intellectual property, even in legislative processes. We were seen in a subset of these legal processes communications that really were not hitting the target audience at all.
Blomster: So, when we're talking about information overload, we're not talking about what's on our screens, what's in our social media feeds, we're really talking about our ability to understand and to process these laws and regulations and the information that really profoundly affects us as members of society. In essence, the comprehensibility of information and all these different kinds of institutions. So, we have some examples like you were touching on but more broadly, why is it critical that we view this concept of information overload through this lens?
Wagner: So, just to take a giant step back, so I am not engaged in sort of looking at social media or personal conversations. I’m really looking at how we've structured legal processes.
Blomster: Right.
Wagner: How we've structured them in consumer contracts, how we've structured them in administrative process. And looking at that design of the actual legal process. The core argument of the book is that we actually have a blind spot in how we've designed these legal processes. We insist on full information and overcoming what's called information asymmetries--when one party has superior access to information. We're obsessed, essentially, with transparency. We need all that documentation. But we don't have the second requirement, which seems sort of common sensical built into these legal processes or the ones I focus on, which is that all that information pouring into the system also needs to be understandable to the reasonable target audience who's receiving it. And so, we can design these processes, but until all the information we're asking to come in or we’re asking regular related parties to share with regulators, until we also make sure that we're requiring not only that they share relevant documents, but they share it in a way that a reasonable regulator can make sense of, then we're kind of losing the benefit of a lot of these legal processes.
So, I really am focusing on the architecture of legal systems only. Whether this translates to other areas, you know, I have no idea. Hopefully, it does or doesn't. But that is my focus.
Blomster: Right, exactly. And the reason I mentioned the idea of screens and social media is because when you talk about information overload, in general, not as the focus of this book, but you know people think too long, didn't read, too much information. These are things that people usually frame as a tech issue, right? This is our inevitable destiny, that we have all this information. And that's just that's just how it is.
So, do you find that challenging when you're trying to talk about this issue, that it's so easy for people to default to imagining as a tech issue, when you're really trying to drill down to legal frameworks, institutions specifically?
Wagner: Definitely. So, that was part of the impetus. And it took me a long time to kind of muddle through the literature and make sense of it. But that's exactly right. So, we in the United States, when we design legal institutions are really concerned about making sure all the relevant information is shared. Again, that's called information asymmetries, overcoming them. But the result, the end result in some programs is exactly what you're talking about. Too long, didn't read. Data bombing, a strategic technique, information overload, because unless we also insist that all that information coming in is also understandable to the main target audience, then we're sort of again losing the whole benefit or the reason for this process to exist in the first place.
And so the book says that not only should we worry about information asymmetries, those are still very important. We need to make sure we have transparency, we absolutely do. But in addition, we have a second variable that we need to think about. And that's what I call comprehension asymmetries, or comprehensibility. And if we have a legal process, where we have a privileged actor, let's say, a regulated party speaking to a regulator, or a seller speaking to a consumer, if that speaker has a better ability to process all this information to make sense of it, and that speaker is disinclined to really share the key message, that's when we have what I call a comprehension asymmetry. And that kind of run alongside information asymmetries, but they part ways in the sense that if we're only worried about sharing information, we can actually work our systems backwards, because we're encouraging lots of information to come in, but we're not worrying about whether it's intelligible or comprehensible. So it's the comprehension asymmetries that run in parallel that I'm most concerned about.
Blomster: It’s not enough to check the box I covered myself because I shared what has been mandated by me to share with you. I do not care if you understood it or not.
Wagner: That is that is exactly right. And that's exactly my complaint. Yes, that's how we've been looking at it in some legal processes and in some systems. And I think maybe we just assume that speakers are always motivated to get the message across. But it turns out many of our regulatory legal processes are there in the first place. Because we have regulated parties that don't really want to share the toxicity of their chemicals, or we have financial entities that don't really want to share the risk of their transactions to investors. So, if that's the case, and we have reluctance speakers, then we need to make sure not only that off the hook when they share information, but they've shared it in a way where it really is usable.
Blomster: Is this a new phenomenon?
Wagner: So, no. I think that this has been a blind spot in how we design legal processes and in fact, on the faculty and in the wonderful comments that the Washington faculty had, one of them was taking me all the way
back to the early 1800s noticing some books on this. So, no, it's not a new phenomenon. And really what the book tries to do is synthesize the literature going on in various legal-siloed fields. So, it turns out that a lot of us are seeing the same structural problem, where we're asking for information, but we're not insisting that it be comprehensible. And people have been writing on this, in some cases in some legal silos, for decades, even longer. And so the book really isn't, you know, sort of starting at the breaking the ground, it was motivated in part because so many different siloed areas were seeing the same thing. And I wanted to take the first run, and it's just the first run in this book at connecting the dots.
Blomster: So, let's talk about some of those dots that we're connecting here. So, let's start with how we pass laws. In the book you talk about how Congress has established processes and rules regarding the passage of legislation and how that ultimately affects the outcome. What has your research found in that space?
Wagner: So, in the legislative space and all of these areas I found because of the fabulous literature, so there's a prize-winning book by James Curry, it's just a few years old. And it's called, Legislating in the Dark. And he writes, and again this isn't always the case, but he writes how, in some situations when Congress is under a lot of pressure to pass a law and get something out there that the party leaders and the sponsors of the bill actually have perverse incentives to write something show unwieldy, that the rank and file can't really make sense of it. That helps diffuse criticism from the opposite party, but they use that to discipline the rank and file to stand up behind them. In other words, they say, “How dare you,” you know, “try to change this negotiated deal get behind us” and the rank and file don't have the time or energy to get behind it.
So, we actually see—and there's literature again that goes back decades—that there are some truly incomprehensible pieces of legislation where you could pour hundreds of hours into it. And it's still pretty hard to understand what's going on. But more to the point, the rank and file members who are voting on this legislation really don't have a very good idea at all what's in it. And in some cases, even the sponsor really can't quite explain what's there. It's just kind of a hodgepodge of mess. Certainly, omnibus bills are a clear example. But we're actually seeing this and have seen this in substantive legislation. So, in the book, I look at what all the great work that's been done, Jesse Cross, Bressman, Abbey Glook, Lisa Bressman, that talk about the different ways that we've established processes that govern how we come up with laws. And when you start to put that structure together you can see why some of these incomprehensible laws are actually squeaking through. And maybe that's still a good thing. Maybe it's good that some laws better than no law, but I wanted to kind of spotlight that that, in fact, seems to be going on.
Blomster: So, another example, another big example is in the consumer space. So, where do we see examples of, you know, this kind of clumsy legal architecture when it comes to consumer contracts and disclosures?
Wagner: Yes. So, great work has been done. And that actually, when I found that work, which I think many people are familiar with, it's really where I got very excited about the book project, and I decided I needed to keep going. Because work by Lauren Willis, Ben Shahar, Oren Bar-Gill—all these folks are seeing first of all problems in contract law, or at least design features of contract law that incentivize sellers—the drafter of contracts—to write contracts that are completely thorough that anticipate every contingency, that dot every i, but because contract law says there's a duty to read and has a bunch of other sort of doctrines that incentivize sort of over anticipation, we have contracts that are binding on customers, typically, especially consumer customers, that are objectively incomprehensible to a rational customer.
In other words, any rational customer is not going to spend the hours and hours to understand an iTunes contract, which could be many, many pages long. In a book called, More Than You Wanted to Know—you know, this is by Ben Shahar and Schneider, they document the heck out of some of these problems, not only in contract law, but also in disclosure law. So, the problems there are if you have a seller that really isn't eager to spill the beans on what a cell phone contract involves or all the limits of it, then this provides a wonderful opportunity to exploit those consumers. And even if they don't want to exploit the consumers, if they want to make sure their contracts upheld, they need to put all this stuff in there. Otherwise, it could get up ended. In a book called Seduction by Contract by Oren Bar-Gill does a fabulous job looking at this problem in three different areas of contracts that are highly complicated. And Lauren Willis’s work in consumer protection—awesome. So, I think again, all the book did is try—hopefully, I didn't get too much of it wrong—to synthesize this work because they all seem to be seeing the same thing.
Blomster: I can't remember the last time I read one of those iTunes license agreement situations. Click right through it, and I could have possibly signed my life away and I don't think I would have known about it.
Wagner: Well, in one sort of cute example actually is I think it was under Obama that was a requirement and people sign mortgages, which obviously they're going to invest rationally more time and understanding what they're signing. So, there was a required disclosure. But what the banks were doing then is they were putting that in a bigger stack of documents like 40 forms, many of them were gratuitous, superfluous and they would sort of hide or bury the real key disclosure under all these forms so that the customer would just get, like, fatigued, you know, and wouldn't read anything.
So, it's really easy for a highly motivated seller to dodge these requirements or making sure their customer knows what's going on.
Blomster: The last example, because you do tie this together, you know the last part what we can do about it. But before we get to those kinds of ideas and solutions, the other scary example that I really wanted to touch on were how the legal incentives for chemical manufacturers, how you found that they can foster the obfuscation of toxicity research, product hazards. What have you found there? Because that is a not a super fun idea to think about.
Wagner: No, it's actually pretty traumatic. And there's a great movie, Dark Waters, that unfortunately a lot of people didn't go to, but it's kind of like Exhibit A on the overarching laws in our design of chemical regulation. So, it's not regulators. It's really how we designed it.
So, the way we designed chemical regulation is at most a chemical company needs to share the information they know of essentially with the regulator. And they don't have to do testing. They don't have to make sense of the toxicity of their chemical in an accessible way. And they don't even have to justify that we need the chemical. So, a household cleaner, it's highly toxic. And white vinegar, which is relatively benign is vastly more effective at getting rid of, let's say, hypothetically getting rid of the bacteria and the problems. But there's no requirements under our consumer protection laws or under our EPA Toxic Substances Control Act, that the manufacturer justify that we need the chemical or explain its toxicity, or place that chemical next to competitor chemicals. So, once again, all they have to do is share what they have. And if they want to put together some really junky, poorly done studies, they can dump them in the agency's lab and it's up to the agency essentially to figure
out the accuracy, the scientific integrity of those studies. They're typically not peer reviewed. And the agencies are looking at a database of 70,000, I think it is, basic chemicals. And that's not even talking about mixtures into consumer products. So, the agency sunk.
We tried to reform it legislatively in 2017. And I think those reforms regrettably still don't get to the core problem that the agency is the one that has to process the safety of chemicals. And as long as that's how we structured it, and we don't require the manufacturers to explain in a comprehensible way the toxicity of their chemicals, especially relative to market substitutes, we're not going to be able to do a very good job at overseeing the safety of chemicals.
Blomster: Wonderful. [laughs] So pleasant.
Wagner: Well, it’s wonderful. Yeah. [laughs] As an academic, that's the stuff we love.
Blomster: Absolutely. So you can see that there is this theme how many different industries and institutions it touches and you know, we're only scraping the surface. You have so much, so much research that you draw on and touch on. So much more in the book. So, I encourage everyone to check it out. So, where do we start, particularly from those in the legal field to address these kinds of institutional legal challenges and really kind of start to foster a culture of comprehensibility in all these different areas?
Wagner: Sure. So, there's a big picture answer, conceptual one, high altitude. And then you'd have to go into specifics. So, the high altitude answer is that we need to design legal processes that have this problem that they're not insisting on incomprehensibility. And just to be clear, not all processes have this failing. But if we see that in the structure of a process, it's vital that the actor be motivated, highly motivated, to explain the key message in an accurate way. So, to motivate them, conceptually—again, high altitude—basically we would give that speaker, the actor, let's say the regulated party, the chemical manufacturer. They get the death penalty if they don't communicate the toxicity of their chemicals in a way that explains the toxicity honestly, and in relationships to the substitutes and in a way that is comprehensible.
So, the key answer is that we need to set up the processes to motivate our speakers to be comprehensible. And it's that incentive that's missing in the design of a lot of legal processes. So, I draw that actually from the excellent work that we that's been done for decades on information asymmetries. So Ian Ayres and Gertner have an article called the default penalty—well they talk about the default penalty rule. Basically, if the actor doesn't share relevant information, then we assume the worst about the information they don't share. So, it's kind of the same idea. If they're not comprehensible, then we assume the worst about them, and they lose. So, at a conceptual high level, that's the answer. The only way to fix this is to make sure that we design the process in a way where the speaker is highly motivated to be comprehensible.
So, the idea that we give the audience more resources, the target audience, or that we have intermediaries or we force plain English, none of those are really going to hit the target because they're too easy to work around. Basically, the success of that actor that’s speaking, their life has to depend—or their success has to depend—on being comprehensible. So, how that actually plays out in the six different areas I survey in the book--you know, consumer contracts, intellectual property, financial disclosures, chemical regulation, administrative process, legislative process—how it pans out looks very different. So, when you take that overarching recipe that I just described conceptually and start to play it out into specific areas, you see it play out in very specific, geeky, wonky ways. And in the book, you know, again, I don't have the answers, but I try to take the first run at how this conceptual approach would look in these different areas and frankly, again, consistent with the synthesis project of the book—for example in consumer contracts and disclosures—all of that wonderful reform work is already in the literature. Lauren Willis has fabulous work reforming the system in exactly the way I just described conceptually. So, I just borrow that and say this is an approach we could use in consumer contracts, you know, and the same with patents and a lot of the other fields.
Blomster: And finally, for our law students who may be interested in pursuing this kind of work and getting involved, what advice would you have for them, if they're looking to kind of, you know, follow in your footsteps in terms of the work that you're doing in this?
Wagner: So again, the book is taking just a preliminary run at synthesizing this and coming out with kind of a conceptual way to think about it. So, it's trying to open the conversation about this phenomenon. So, I guess two ways students could react. One is that when they are confused about areas of law or they see ways that the law could incentivize you sort of this unintelligibility contracts or regulatory communications. Instead of saying “Oh, shucks,” that's the way it is, or the world's gotten complicated or you know, there's too much information out there, they should kind of put their legal architect hat on, and get mad about it. And view that as a symptom of a disease and to start to think about it.
And I guess the second thing is, if any of this resonates with students or other law faculty, I have a sense, I just went into six silos. But near the end of the book, I cite a couple other areas where people seem to be seen as but I didn't drill down, you know, be curious to do a much bigger picture than I do. Maybe the conceptual framework I have suggested needs adjusting, or maybe the ways to reform it can be fleshed out. So, you know, hopefully students and law faculty, if they see some merit in worrying about this particular issue, could take a run at it with their own work in their own specializations, and maybe we could, all together have a larger conversation. And kind of break out of our silos and start to see these legal architecture issues. I do feel as academics, we do have a responsibility to try to step back and look at the bigger picture. It's perilous. And there aren't a whole lot of rewards to step outside your specialization. But I think at the end of the day, if we do, we might see some pretty important interesting things. Hopefully, this is one of them.
Blomster: Wendy Wagner is Richard Dale Endowed Chair in law at the University of Texas at Austin School of Law. Her latest book Incomprehensible: A Study of How our Legal System Encourages Incomprehensibility, Why it Matters and What We Can Do About It is out now on Cambridge press, you can find it on Amazon and just about anywhere else, you can get your books. She's here sharing her insights today as part of UW Law’s Shefelman Faculty Workshops, which take place quarterly. You can check out the podcast page for links to the book as well as more information on everything that we talked about here today starting at law.uw.edu.
Wendy, thank you very much for joining us today.
Wagner: Thanks again, John.
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