Against Notice Skepticism
Requiring notice is a very popular way to regulate. It is also among the most heavily criticized. This article undermines the case for notice skepticism by exposing two erroneous assumptions critics of notice commonly make.
The first assumption is that notice is monolithic. It is not. Notice consists of several, distinct strategies. It is surprisingly common for a lawmaker to select the wrong form(s) of notice for the particular context or concern. A statute will require a warning, for instance, where other categories of notice such as reporting or notification would be more effective and less costly.
The second assumption is that notice must consist of language or its symbolic equivalent. Experience itself can also constitute a form of non-linguistic or “visceral” notice, one less susceptible to cognitive and other limitations. Electric cars, being silent, put pedestrians at risk. Officials could post warnings throughout the city that many would miss or tune out or ban the technology altogether. Instead, some regulators have proposed requiring that electric car manufacturers reintroduce an engine noise. Various emerging techniques can change our mental models in legally relevant ways without recourse to text or symbols.
The prevailing notice skepticism should not succeed in convincing lawmakers, academics, and others to abandon notice as a strategy without first acknowledging and correcting these errors. Officials, meanwhile, should look to these insights as they consider mandatory notice going forward.