This article is forthcoming in the Notre Dame Law Review, 2007.


Policymakers are increasingly pondering or evaluating the use of software and its influence on societal concerns such as privacy, freedom of speech, and intellectual property protection. A necessary step in this process is deciding what the “settings” should be for the relevant software. In this paper, we build upon work in computer science, behavioral economics, and legal scholarship to establish a well-defined framework for how default settings in software should be determined. This normative approach towards software settings stands apart from most previous scholarship, which focuses on the effect of software settings.

Our recommendations include several scenarios where policymakers should intervene and ensure that defaults settings are set to enhance societal welfare. These recommendations are illustrated with three examples. If policymakers change the default settings in our examples, they would enhance competition, security, and privacy. We believe that the manipulation of software to enhance social welfare is a powerful tool and a useful complement to traditional legal methods.


Communications Law | Computer Law | Cyberspace Law | Law and Economics | Law and Society | Science and Technology

Date of this Version

August 2006