Originally uploaded at SSRN.

Abstract

Sometimes we are better off not knowing things. While we often hear that "ignorance is bliss," there has not been a comprehensive consideration in the legal academy of the virtues of ignorance and its regulation. Though the distribution of knowledge, like the distribution of other goods, is affected both directly and indirectly by law, several characteristics of knowledge distinguish it from other kinds of property. Much has been written about the impact of the nonrival and nonexclusive nature of knowledge on its production and distribution. This Article centers around two other attributes of knowledge that combine to create a special kind of problem: (1) its stickiness, meaning that once acquired knowledge may not be abandoned but only fortuitously forgotten, and (2) its capacity to impose substantial disutilities on its holder. If ignorance is a good, then knowledge must be avoided in the first instance.

My approach in this initial inquiry is pragmatic. I first consider four examples of knowledge that individuals may desire not to have, namely knowledge of one's genetic make-up and predispositions, knowledge of one's HIV status, lenders' knowledge of the race of a borrower, and lawyers' knowledge of the falsity of a client's proposed testimony or evidence. From these I abstract discrete categories of ignorance interests, centered around (a) whether or not knowledge is undesirable for its tendency to interfere with conduct and (b) whether or not knowledge is undesirable for its substance.

Finally, I begin to examine how we should respond legally to these interests in ignorance. I conclude that our decision whether to respect autonomy in making knowledge decisions is affected not only by our operating conception of autonomy but also the category of ignorance interest at issue. In addition, the nature of knowledge impacts our ability to ascertain preferences, our instrumental goals, and our choice of regulatory tools.