Indiana Law Journal

Document Type


Publication Date

Spring 2016

Publication Citation

91 Indiana Law Journal 1023 (2016)


What marketing, contracts, and healthcare—specifically informed consent and mandatory ultrasounds—have in common is the right to attention from the information receiver. However, scholarship most often focuses on the communicator’s perspective (e.g., how much information the communicator discloses) or on the information itself, but surprisingly, not much on the receiver’s perspective.

This dearth of scholarship from the information receiver’s perspective is problematic, because the information receiver is often the “little guy” in the conversation. We own and are entitled to our attention because attention is a property right and part of our individual dignity. Yet advertisement companies and scam artists freely bombard us with their “products” daily, resulting in our own time and monetary loss. Without recognizing the right to attention, contract formation and informed consent (just to name a few) are hollow and superfluous: contracting parties have no meeting of the minds, and informed consent is giving consent without being informed. States could continue to freely mandate ultrasounds for pregnant women against their wills as though their attentions were not really theirs in the first place. Similarly, other problems in our daily lives that involve attention would likely continue to go unaddressed. New emerging technologies make this an issue of increasing importance.

This Article proposes legislation to recognize the right to attention as a statutory right, or alternatively, suggests that the courts recognize the right to attention as a common-law right based on the U.S. Constitution. Specifically, the right to attention’s much larger, as-yet-poorly-defined bundle of rights includes, for example, the right to deny attention when demanded, the right to be left alone, the right to not be spammed and the right to not receive ads when such advertisement is unwanted or uninvited, the right to waive the understanding of an agreement, the right to give consent without being informed, and the right to not be required to receive information against one’s will.

This Article is the first to identify the right to attention, including its much larger, as-yet-poorly-defined bundle of rights. This Article hopes to identify and illuminate the right to attention in hopes of generating further discussion and exploration of this novel bundle of rights.