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Summary (Lectures and Literature) REAL 2020_2021
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Summary (Lectures and Literature) REAL 2020_2021
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Summaries: Law and Technology LLM Tilburg UniversityAcademic Year: 2020-2021
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,2020/2021
,LECTURE 1: Introduction and the LTS Model of Regulation
Regulating New Technologies in Uncertain Times (Leenes, 2019)
Introduction
• Example of e-commerce, law is silent on these topics because ‘law is outdated, lawyers are
old-fashioned, law is paper-based’
• Is the legal system flexible enough to deal with such novelties?
Back to the Future
• Every time a new technology materializes, or when innovators and entrepreneurs come up
with a novel way of doing business à calls for regulatory changes can be heard
• Flawed Law Syndrome: the urge to call law or regulation outdated or flawed (disconnected)
and the desire to fix the problems by addressing the law, rather than using other ways to
mend the assumed gaps (‘Legal Solutionism’) à This is a reaction which does not explore
the actual state of the art with respect to the technology and the law
• This ‘call to regulate’: present in self-driving cars or Uber-like services à due to
‘regulatory disconnect’
• Do we need new regulation to cope with issues associated with new technologies, or
are the classical instruments sufficient?
o Easterbrook: his target was Lessig’s and others’ idea to create a new are of law,
‘Cyberlaw’
o Easterbrook: there is no law of the horse, why should we create one? à pointless
to create new law on a specific novelty
o Law of the horse = a metaphor for comprehensive regulation around ‘all things
horses’, whenever there is an issue involving a horse the law of the horse is where
to look for answers,
o Positive side: having everything in single act is convenient
o Difficult: how about new inventions? Qualification and classification
• Fuller: good law is law possible to obey, legal compliance is easier with general rules rather
than a large set of specific rules in every new topic
Regulating Technology
• We should be careful with new technologies, not so much about Collingridge Dilemma-
type of issues, but because if something does not need fixing we shall not fix it
• Example: ‘Pirate Islands’ or ‘Experimental Zones’ in big data domains, robotics: limit the
scope or effects of rules that supposedly hamper innovation
• Interaction between innovation/technological development – regulation – normative
outlooks such as privacy and autonomy à ongoing process of socio-technological change
that is dynamic and open-ended
• Two claims brought by the industry regarding regulatory framework:
1. Rules are unduly constrained
2. Rules are unclear
• Regulate = weigh interests and the outcome of this process
• Regulation = seen as an impediment to innovation à whether this is the case depends on
the context, e.g. testing an autonomous vehicle that should be racing on a slot car racetrack
and the kind of testing required to get vehicles like Tesla’s self-driving vehicles in public
roads. What matters is not if it tests well in the racetrack but that it doesn’t hit trucks.
o If future of self-driving cars is one without steering wheels à solutions: we ban
self-driving vehicles from public roads through Article 8 Vienna Convention or we
change the regulation removing the requirement for a driver to be physically present
, o Challenging to do because multiple interests come into play: industry and large
corporate players mobilize a strong lobby to get the rules they want (Regulatory
capture)
• Authorities that enforce existing rules (e.g. Comma One box that makes Hondas quasi-
autonomous: the US National Highway Traffic Safety Admin. Informed Holz that there is
need to comply with safety requirements for motor vehicles) à essential reminder that
norms are there to be observed
Connecting the dots
• Regulatory disconnect exists, e.g. driver requirement for self-driving cars, or lacunae in
regulation
• However, disconnect is a necessary step in field of technology regulation
LTS Model (left à right)
(1) Technology
Two conflicting approaches to start the conversation
a. Instance of a particular type of technology
b. Super-broad category of technology, generalization
• Example: should we regulate self-driving vehicles as an instance of a particular type of
technology, or regulate them in a broad category of ‘self-driving vehicles’?
• Neither approach seems desirable, in (a) we might focus on the potentially coincidental
features of technology that then determines how to proceed towards regulation, in (b)
discussion runs the risk of becoming too abstract hence unhelpful
• Lydia Bennet Moses 2013: addresses problem of addressing technology as a regulatory
target and instead calls attention for looking at the socio-technical landscape. Taking a
socio-technical lens determines what the technology’s focus actually is, what are
relevant characteristics, interests.
(2) The issues raised by technological development are addressed
• Issues, risks, problems, socio-technical context & stakeholders come into play
(3) Intervention if a regulatory gap exists
• Three broadly accepted understandings of regulation:
a. The promulgation of rules by government accompanied by mechanisms for monitoring
and enforcement, usually assumed to be performed through a specialist public agency
b. Regulation is any form of direct state intervention in the economy, whatever form that
intervention might take
c. Regulations are all mechanisms of social control or influence affecting all aspects of
behavior from whatever source, intentional or not
• Julia Black: ‘ The sustained and focused attempt to alter the behavior of others
according to standards or goals with the intention of producing a broadly identified
outcome(s), which may involve mechanisms of standard-setting, information-gathering
and behavior-modification.
o Moves forward from state as regulator and includes other modalities of
regulation
o Decentered
o Ronald adheres to this
• Justifications for regulation: problem fits within market failure/human rights
protection/conflict resolution à warrant intervention
• Determining regulatory disconnect/failure is difficult
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