The "Persuasion Route" of the Law: Advertising and Legal Persuasion

Persuasive commercial messages--advertisements--dominate our experience of persuasion in contemporary American life. In the past quarter century, the commercial landscape has witnessed significant change in the volume, styles, and strategies of advertising. In particular, this Note argues that modern advertising contains little information about products and services, and that rational processing of information has become less important to consumer decisionmaking. At the same time, advertising research shows that consumers do not seek out or use product information contained in advertisements, and that less-informative advertising may actually be more persuasive than advertising containing a lot of information. This Note argues that changes in commercial persuasion influence legal persuasion. It catalogues three examples of advertising-like strategies utilized by advertising advocates in commercial speech cases to persuade the Supreme Court to "buy" the claim that advertising and demand are not linked. It also suggests that advertising research has produced evidence of decisionmaking heuristics that legal scholars should take seriously.