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the treatment or not. There are debates
around the scale of information the
physician should be required to disclose
here. A lot? A little? Some people are not
interested in knowing what will happen
to them in a probability of 1/1000. Others
want to know absolutely everything, in
painstaking detail. Physicians therefore
adhere to a standard protocol of disclosure
to avoid the threat of legal liability in
cases of partial or non-disclosure. But
with personalization, disclosure could be
tailored so that only information likely
to be essential to the patient is disclosed,
and information likely to be not essential
is omitted. For example, the physician
could enter an ID number in the
computer and see: “Judi: Disclosure Level
7”, so the physician knows that a high
level of disclosure is pertinent in your
case. Or he might see: “Ariel: Disclosure
Level 2” and know that I am interested in
minimal disclosure. That way everyone
gets the information they want. This kind
of personalized medical disclosure could
have significant economic and health
benefits.”
But is it possible that the personalization
of default rules misses the point that
prompted the need for extended duties
of disclosure?
“In the book ‘More Than You Wanted
to Know: The Failure of Mandated
Disclosure’, Carl Schneider and Omri Ben-
Shahar argue that disclosure, particularly
in the field of consumer transactions,
has become hugely excessive. People are
simply not interested in reading the small
print, so why bother? What’s the point
in spending all these resources that are
ultimately paid for by consumers? We
agree that there is a serious problem of
excessive disclosure and unreasonable
load of information. But if you personalize
the duty of disclosure for consumers, for
example, people will get precisely what
they want, and the use of information will
be far more effective.”
But what about privacy?
“Well, some will argue that using Big
Data for personalization curtails on
privacy, and the answer to that is, too
late!” smiles Prof. Porat. “The use of
Big Data is already here; it is done first
and foremost in the field of marketing
and consumers are generally satisfied
with it. For instance, I’m pleased that
I get only five emails per day trying to
sell me products or services, instead of
500 of them. Many see the advantage of
receiving offers for purchasing products
that are tailored to them and consistent
with their preferences and expectations.”
I suppose the primary objection to the
personalization of default rules is the
inevitable compromise to the certainty
of the law and the ability to rely on it.
“True, but is it convincing? Think of
consumers who purchase a product, a TV
set for example. The consumer isn’t aware
of the defaults that apply to the transaction.
For instance, what will happen in the case
of a defect in the set. There is an illusion
of certainty here, as if the consumer
is already aware of the defaults. With
personalization, the consumer will
receive defaults that are closest to his or
her preferences, needs and expectations.
Just as in the case of inheritance, which
opened our discussion: most people do
not leave a will and hardly know how
their estate will be divided after they
pass away. They don’t like to think about
death and deal with its consequences.
So, the rationale for personalization here
would be to divide the estate in a way that
mirrors, as close as possible, the wishes of
the diseased. That’s the basic idea.”
In the article you discuss an interesting
example of organ donation...
“Yes, the question is what happens with
organ donation after death. Take Germany
versus Austria. In Germany, the default is
that if a person does not express his or her
wish on the matter, their organs cannot
be harvested after death, as in Israel. But
in Austria, the default is the reverse: if a
person does not express his or her wish,
their organs can be harvested. While the
population in both countries is similar in
many ways, in Germany only about 10%