Karen Sokol, ‘ “We Interrupt this Program”: The Role of Tort Law in Disrupting Corporate Manipulation of Societal Cognition, Neuromarketing and the Case of Electronic Cigarettes’

At least since the 1920s, corporate actors have acquired an increasingly greater capacity for actions that can harm individuals throughout the nation, and even the world. This has resulted to a significant extent from their abilities, on the one hand (1) to present more serious risks to large numbers of people through the use of often quite astounding scientific and technological developments and the mass-marketing of products; and (2) to exercise significant control over public perceptions of their products and other business activities through highly sophisticated advertising and other “public relations” campaigns. As a result of these two developments, many corporate actors have amassed significant power and influence over our environment and our choices about what we consume and use on a regular basis.

In this article, I focus on (1) one method by which companies are trying to influence public perception of their products: so-called “neuromarketing,” a new interdisciplinary field that aims to tap into the human mind as directly as possible by using sophisticated technological developments in neuroscience and cognitive science; and (2) one product that is dangerous to human health and that may become more so if neuromarketing techniques prove to be as effective as manufacturers hope; namely, electronic cigarettes (or “e-cigarettes”), which are battery-powered devices that vaporize liquid nicotine and other undisclosed chemicals, allowing users to inhale (or “vape”) the mixture.

I argue that, in this post-industrial era of widespread human threats presented by products and other business activities, such as e-cigarettes, and of companies’ concomitant ability to obscure these dangers and induce people to use their products by manipulating societal cognition through techniques such as neuromarketing, tort law serves what I call a “disruption function.” This function straddles the two traditional categories of tort theory – i.e., instrumental and non-instrumental theories. Specifically, the tort system provides a much-needed “space” away from pervasive corporate manipulation of societal cognition. This space permits society – represented by litigants, judges, and juries – to examine closely and consider whether corporate activities should be subject to some legal oversight in a given case after hearing the story of the occurrence of the particular harm or harms relatively free of the “noise” of the corporate cognitive manipulation that so often pervades society and culture.

Finally, I explain how the dichotomy underlies many of the calls for limiting the tort system and accordingly must be rejected if the tort system is to remain viable in the current era of expansive corporate activities that can cause widespread harms, particularly if neuromarketing and other increasingly sophisticated techniques for manipulating societal cognition regarding products that present significant risks to human health, such as e-cigarettes, are as successful as the business literature indicates that companies hope them to be.

Sokol, Karen C, ‘We Interrupt this Program’: The Role of Tort Law in Disrupting Corporate Manipulation of Societal Cognition, Neuromarketing and the Case of Electronic Cigarettes (May 9, 2014). 66 South Carolina Law Review, 2014, forthcoming; Loyola University New Orleans College of Law Research Paper.

First posted 2014-05-11 06:20:49

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