Reputation Reconsidered

Reputation has a great reputation. We know this because the law values, venerates, and subsidizes reputation in many ways. Contract law relies on it as a means of disciplining the market without the need for intrusive regulation. Defamation law lets individuals and businesses seek relief when their reputations are sullied.

Trademark law grants exclusive rights in order to encourage rightsholders to invest in their reputations. In these fields and others, the law views reputation as an important, socially positive good. This faith in the integrity and value of reputation is unwarranted. Our impression of any given business is subject to so many distortions that relying on reputation as a basis for broad policymaking is fraught with peril.

Some of these distortions arise from the informational nature of reputation itself. Other distortions are more deliberate; no one has an interest in cultivating a reputation that is worse than the reality, but everyone has an interest in cultivating a reputation that’s better. The overall effect of these distortions is that reputation often represents what its object wants it to represent, rather than representing its object’s true nature. This insight contravenes common assumptions about reputation, undermines the law’s reliance on it, and compels a reexamination of normative and doctrinal commitments across otherwise unrelated areas of law.