Neither Consent nor Property: A Policy Lab for Data Law
For regulators and legal scholars, it provides an evidence-based method to evaluate data governance policies, showing that property-rule mechanisms are suboptimal.
This paper develops an agent-based model of the data market, calibrated with LLM-based preference elicitation, to simulate legal regimes. It finds that shifting liability to downstream buyers maximizes social welfare, challenging the dominant informed consent paradigm.
Regulators currently govern the AI data economy based on intuition rather than evidence, struggling to choose between inconsistent regimes of informed consent, immunity, and liability. To fill this policy vacuum, this paper develops a novel computational policy laboratory: a spatially explicit Agent-Based Model (ABM) of the data market. To solve the problem of missing data, we introduce a two-stage methodological pipeline. First, we translate decision rules from multi-year fieldwork (2022-2025) into agent constraints. This ensures the model reflects actual bargaining frictions rather than theoretical abstractions. Second, we deploy Large Language Models (LLMs) as "subjects" in a Discrete Choice Experiment (DCE). This novel approach recovers precise preference primitives, such as willingness-to-pay elasticities, which are empirically unobservable in the wild. Calibrated by these inputs, our model places rival legal institutions side-by-side to simulate their welfare effects. The results challenge the dominant regulatory paradigm. We find that property-rule mechanisms, such as informed consent, fail to maximize welfare. Counterintuitively, social welfare peaks when liability for substantive harm is shifted to the downstream buyer. This aligns with the "least cost avoider" principle, because downstream users control post-acquisition safeguards, they are best positioned to mitigate risk efficiently. By "de-romanticizing" seller-centric frameworks, this paper provides an economic justification for emerging doctrines of downstream reachability.