The Death of Rules and Standards | Casey, Niblett

Anthony J. Casey, Anthony Niblett; The Death of Rules and Standards; Coase-Sandor Working Paper Series in Law and Economics No. 738; Law School, University of Chicago; 2015; 58 pages; landing, copy, ssrn:2693826.

tl;dr → because reasons and
  • Prediction Technologies
  • Communication Technologies

Abstract

Scholars have examined the lawmakers’ choice between rules and standards for decades. This paper, however, explores the possibility of a new form of law that renders that choice unnecessary. Advances in technology (such as big data and artificial intelligence) will give rise to this new form – the micro-directive – which will provide the benefits of both rules and standards without the costs of either.

Lawmakers will be able to use predictive and communication technologies to enact complex legislative goals that are translated by machines into a vast catalog of simple commands for all possible scenarios. When an individual citizen faces a legal choice, the machine will select from the catalog and communicate to that individual the precise context-specific command (the micro-directive) necessary for compliance. In this way, law will be able to adapt to a wide array of situations and direct precise citizen behavior without further legislative or judicial action. A micro-directive, like a rule, provides a clear instruction to a citizen on how to comply with the law. But, like a standard, a micro-directive is tailored to and adapts to each and every context.

While predictive technologies such as big data have already introduced a trend toward personalized default rules, in this paper we suggest that this is only a small part of a larger trend toward context- specific laws that can adapt to any situation. As that trend continues, the fundamental cost trade-off between rules and standards will disappear, changing the way society structures and thinks about law.

Table of Contents

  1. Introduction
  2. The Emergence Of Micro-Directives And The Decline Of Rules And Standards
    1. Background: Rules and standards
    2. Technology will facilitate the emergence of micro-directives as a new form of law
    3. Demonstrative examples
      • Example 1: Predictive technology in medical diagnosis
      • Example 2: Communication technology in traffic laws
    4. The different channels leading to the death of rules and standards
      1. The production of micro-directives by non-legislative lawmakers
      2. An alternative path: Private use of technology by regulated actors
  3. Feasibility
    1. The feasibility of predictive technology
      1. The power of predictive technology
      2. Predictive technology will displace human discretion
    2. The feasibility of communication technology
  4. Implications And Consequences
    1. The death of judging? Institutional changes to the legal system
    2. The development and substance of policy objectives
    3. Changes to the practice of law
    4. The broader consequences of these technologies on individuals
      1. Privacy
      2. Autonomy
      3. Ethics
  5. Conclusion

Snide

  • heavy-handed use of the metaphor “death X” in lieu of the more mundate “cessation of use of the technique X.”
  • At least they didn’t use the metaphors of “sea change” or “tectonic shifts” from the respective fields of weather prediction or geology.
  • <GEE-WHIZZ!>As economist Professor William Nordhaus notes, the increase in computer power over the course of the twentieth century was “phenomenal,”</GEE-WHIZZ!!>

Mentions

  • catalog of personalized laws.
    “special law for you.”
  • rules and standards
    contra
    captures and benefits
  • micro-benefits
  • predictive technology
  • uncertainty of law
  • <quote>The legislature merely states its goal. Machines then design the law as a vast catalog of context-specific rules to optimize that goal. From this catalog, a specific micro-directive is selected and communicated to a particular driver (perhaps on a dashboard display) as a precise speed for the specific conditions she
    faces.</quote>
  • positive versus normative (analysis)
  • (legislative) decision-making has
    • errors
    • costs
  • (subject) compliance has
    • cost
    • uncertainty
  • There are economies of scale in compliance
    • frequency of event
    • diversity of events
  • Conceptualize the frequency of the regulated event relative the specificity of the regulation.
  • The Combination
    • Prediction Technologies
    • Communication Technologies
  • <quote>The wise draftsman . . . asks himself, how many of the details of this settlement ought to be postponed to another day, when the decisions can be more wisely and efficiently and perhaps more readily made?</quote>, attributed to Henry Hart, Albert Sacks.
  • Claim
    • Standards are flexible, broad but uncertain in adjudication;
      so service delivery is tailored
      therefore the salubrious effect obtains.
    • Rules are specific, narrow but certain in adjudication;
      so service delivery is pre-specified, constrained
      therefore mis-applications occur.
    • Technology (cited) removes the distinction between Rules and Standards
  • advance (tax) rulings
  • Private Letter Rulings, IRS
  • No Action Letter, SEC

Argot

  • one size fits all
  • bright-line rule
  • over-inclusive (contra under-inclusive)
  • optimal decision rule
  • reasonable care
  • Error Typology(in hypothesis testing)
    • Type I Error
    • Type II Error
  • health surveillance technologies
  • second-order regulation

References

Sure, it’s a legal-style paper so there are 191 footnotes sprinkled liberally throughout the piece.  Only selected references were developed.

Followup

  • <quote>Indeed, some suggest that Moore’s Law is akin to a self-fulfilling prophecy.</quote>
    Harro van Lente & Arie Rip, “Expectations in Technological Developments: an Example of Prospective Structures to be Filled in by Agency”  researchgate, In Getting New Technologies Together: Studies In Making Sociotechnical Order, 206 (Cornelis Disco & Barend van der Meulen, eds. 1998), Amazon:311015630X: paper: $210+SHT.
  • …and more…

Via: backfill.

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