The law is adapting to a software-driven world

Curated on Posted on by Stefaan Verhulst

Andrew Burt in the Financial Times: “When the investor Marc Andreessen wrote in 2011 that “software is eating the world,” his point was a contentious one. He argued that the boundary between technology companies and the rest of industry was becoming blurred, and that the “information economy” would supplant the physical economy in ways that were not entirely obvious. Six years later, software’s dominance is a fact of life. What it has yet to eat, however, is the law. If almost every sector of society has been exposed to the headwinds of the digital revolution, governments and the legal profession have not. But that is about to change. The rise of complex software systems has led to new legal challenges. Take, for example, the artificial intelligence systems used in self-driving cars. Last year, the US Department of Transportation wrote to Google stating that the government would “interpret ‘driver’ in the context of Google’s described motor-vehicle design” as referring to the car’s artificial intelligence. So what does this mean for the future of law?

It means that regulations traditionally meant to govern the way that humans interact are adapting to a world that has been eaten by software, as Mr Andreessen predicted. And this is about much more than self-driving cars. Complex algorithms are used in mortgage and credit decisions, in the criminal justice and immigration systems and in the realm of national security, to name just a few areas. The outcome of this shift is unlikely to be more lawyers writing more memos. Rather, new laws will start to become more like software — embedded within applications as computer code. As technology evolves, interpreting the law itself will become more like programming software.

But there is more to this shift than technology alone. The fact is that law is both deeply opaque and unevenly accessible. The legal advice required to understand both what our governments are doing, and what our rights are, is only accessible to a select few. Studies suggest, for example, that an estimated 80 per cent of the legal needs of the poor in the US go unmet. To the average citizen, the inner workings of government have become more impenetrable over time. Granted, laws have been murky to average citizens for as long as governments have been around. But the level of disenchantment with institutions and the experts who run them is placing new pressures on governments to change their ways. The relationship between citizens and professionals — from lawyers to bureaucrats to climatologists — has become tinged with scepticism and suspicion. This mistrust is driven by the sense that society is stacked against those at the bottom — that knowledge is power, but that power costs money only a few can afford….(More)”.

Entrepreneurial Administration

Curated on Posted on by Stefaan Verhulst

Research Paper by Phil Weiser: “A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.

Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a result. Consider, for example, that Energy Star, a successful program that has encouraged the manufacture and sale of energy efficient appliances, is developed and overseen by the Environmental Protection Agency (EPA). After the EPA established the program, Congress later codified it and, eventually, other countries followed suit. By contrast, the successful and complementary program encouraging the construction of energy efficient buildings, the well-respected LEED standard, is developed and overseen by a private organization. After it was developed, a number of governmental authorities endorsed it and have encouraged LEED-certified construction projects with both carrots and sticks. Significantly, while neither the Energy Star nor the LEED program were originally anticipated by any regulatory statute, both have had a tremendous impact.

The Energy Star and LEED case studies exemplify the sort of innovative regulatory strategies that are taking root in the modern administrative state. Despite the importance of entrepreneurial administration in practice, scholars have failed to examine the role of entrepreneurial leadership in spurring policy innovation and earning regulatory authority for an agency (or private entity). In short, administrative law needs a richer and more textured account of agency action, why entrepreneurial leadership matters in government, and how agencies should operate.

This Article explains that the conventional view of agency behavior — either following the specific direction of Congress or the President to use notice-and-comment rulemaking or adjudication processes — does not adequately portray how public agencies and private entities develop innovative regulatory strategies and earn regulatory authority as a result. In particular, this Article explains how governmental agencies like the EPA or private entities like the Green Building Council (which oversees the LEED standard) depend on entrepreneurial leadership to develop experimental regulatory strategies. It also explains how, in the wake of such experiments, legislative bodies have the opportunity to evaluate regulatory innovations in practice before deciding whether to embrace, revise, reject, or merely tolerate them.

This Article highlights the importance of entrepreneurial leadership in government, providing a number of examples of emerging regulatory experiments and suggesting how Congress should evaluate such experiments. This discussion explains how entrepreneurial leadership and a culture of experimentation and trial-and-error learning is necessary to develop innovative strategies and overcome the pressure to manage the status quo. In so doing, the Article underscores how policy entrepreneurship is integral to agency effectiveness, an important corrective to public choice theory, and a missing piece of modern administrative law scholarship….(More)”.

Standard Business Reporting: Open Data to Cut Compliance Costs

Curated on Posted on by Stefaan Verhulst

Report by the Data Foundation: “Imagine if U.S. companies’ compliance costs could be reduced, by billions of dollars. Imagine if this could happen without sacrificing any transparency to investors and governments. Open data can make that possible.

This first-ever research report, co-published by the Data Foundation and PwC, explains how Standard Business Reporting (SBR), in which multiple regulatory agencies adopt a common open data structure for the information they collect, reduces costs for both companies and agencies.

SBR programs are in place in the Netherlands, Australia, and elsewhere – but the concept is unknown in the United States. Our report is intended to introduce SBR to U.S. policymakers and lay the groundwork for future change….(More)”.

Behavioural Insights and Public Policy

Curated on Posted on by Stefaan Verhulst

OECD Report: ““Behavioural insights”, or insights derived from the behavioural and social sciences, including decision making, psychology, cognitive science, neuroscience, organisational and group behaviour, are being applied by governments with the aim of making public policies work better. As their use has become more widespread, however, questions are being raised about their effectiveness as well as their philosophical underpinnings. This report discusses the use and reach of behavioural insights, drawing on a comprehensive collection of over 100 applications across the world and policy sectors, including consumer protection, education, energy, environment, finance, health and safety, labour market policies, public service delivery, taxes and telecommunications. It suggests ways to ensure that this experimental approach can be successfully and sustainably used as a public policy tool…(More)”.

Big Data and the Well-Being of Women and Girls: Applications on the Social Scientific Frontier

Curated on Posted on by Stefaan Verhulst

Report by Bapu Vaitla et al for Data2X: “Conventional forms of data—household surveys, national economic accounts, institutional records, and so on—struggle to capture detailed information on the lives of women and girls. The many forms of big data, from geospatial information to digital transaction logs to records of internet activity, can help close the global gender data gap. This report profiles several big data projects that quantify the economic, social, and health status of women and girls…

This report illustrates the potential of big data in filling the global gender data gap. The rise of big data, however, does not mean that traditional sources of data will become less important. On the contrary, the successful implementation of big data approaches requires investment in proven methods of social scientific research, especially for validation and bias correction of big datasets. More broadly, the invisibility of women and girls in national and international data systems is a political, not solely a technical, problem. In the best case, the current “data revolution” will be reimagined as a step towards better “data governance”: a process through which novel types of information catalyze the creation of new partnerships to advocate for scientific, policy, and political reforms that include women and girls in all spheres of social and economic life….(More)”.

Avoiding Data Graveyards: Insights from Data Producers & Users in Three Countries

Curated on Posted on by Stefaan Verhulst

Report by Samantha Custer and Tanya Sethi: “Government, development partner, and civil society leaders make decisions every day about how to allocate, monitor and evaluate development assistance. Policymakers and practitioners can theoretically draw from more data sources in a variety of formats than ever before to inform these decisions,but will they choose to do so? Those who collect data and produce evidence are often far removed from those who ultimately influence and make decisions. Technocratic ideals of evidence-informed policymaking and data-driven decision-making are easily undercut by individual prerogatives, organizational imperatives, and ecosystem-wide blind spots.

In 2016, researchers from the AidData Center for Development Policy interviewed nearly 200 decision-makers and those that advise them in Honduras, Timor-Leste, and Senegal. Central government officials, development partner representatives based in country, and leaders of civil society organizations (CSOs) shared their experiences in producing and using data to target development projects, monitor progress, and evaluate results.

Specifically, the report answers three questions:

  • Who produces development data and statistics, for what purposes and for whom?
  • What are the the technical and political constraints for decision-makers to use development data in their work?
  • What can funders and producers do differently to encourage use of data and evidence in decision-making?

Using a theory of change, we identify nine barriers to the use of data and corresponding operating principles for funders and producers to make demand-driven investments in the next generation of development data and statistics….(More)”.

Towards an experimental culture in government: reflections on and from practice

Curated on Posted on by Stefaan Verhulst

 Jesper Christiansen et al at Nesta: “…we share some initial reflections from this work with the hope of prompting a useful discussion about how to articulate the value of experimentation as well as what to consider when strategically planning and doing experiments in government contexts.

Reflection 1: Experimentation as a way of accelerating learning and exploring “the room of the non-obvious”

Governments need to increase their pace and agility in learning about which ideas have the highest potential value-creation and make people’s lives the rationale of governing.

Experimental approaches accelerate learning by systematically testing assumptions and identifying knowledge gaps. What is there to be known about the problem and the function, fit and probability of a suggested solution? Experimentation helps fill these gaps without allocating too much time or resource, and helps governments accelerate the exploration of new potential solution spaces.

This approach is often a key contribution of government policy labs and public sector innovation teams. Units like Lab para la Ciudad in Mexico City, Alberta Co-Lab in Canada, Behavioural insights and Design Unit in Singapore, MindLab in Denmark and Policy Lab in the UK are specifically set up to promote, develop and/or embed experimental approaches and accelerate user-centred learning in different levels of government.

In addition, creating a culture of experimentation extends the policy options available by creating a political environment to test non-linear approaches to wicked problems. In our training, we often distinguish between “the room of the obvious” and the “room of the non-obvious”. By designing portfolios of experiments that include – by deliberate design – the testing of at least some non-linear, non-obvious solutions, government officials can move beyond the automatic mode of many policy interventions and explore the “room of the non-obvious” in a safe-to-fail context (think barbers to prevent suicides or dental insurance to prevent deforestation).

Reflection 2: Experimentation as a way of turning uncertainty into risk

In everyday language, uncertainty and risk are two notions that are often used interchangeably; yet they are very different concepts. Take, for example, the implementation of a solution. Risk is articulated in terms of the probability that the solution will generate a certain outcome. It is measurable (e.g. based on existing data there is X per cent chance of success, or X per cent chance of failure) and qualitative risk factors can be developed and described.

Uncertainty, on the other hand, is a situation where there is a lack of probabilities. There is no prior data on how the solution might perform; future outcomes are not known, and can therefore not be measured. The chance of success can be 0 per cent, 100 per cent, or anything in between (see table below).

There is often talk of the need for government to become more of a ‘risk taker’, or to become better at ‘managing risk’. But as Marco Steinberg, founder of strategic design practice Snowcone & Haystack, recently reminded us, risk-management – where probabilities are known – is actually something that governments do quite well. Issues arise when governments’ legacies can’t shape current solutions: when governments have to deal with the uncertainty of complex challenges by adapting or creating entirely new service systems to fit the needs of our time.

For example, when transforming a health system to fit the needs of our time, little can be known about the probabilities in terms of what might work when establishing a new practice. Or when transforming a social care system to accommodate the lives of vulnerable families, entirely new concepts for solutions need to be explored. “If you don’t have a map showing the way, you have to write one yourself,” as Sam Rye puts it in his inspirational example on the use of experimental cards at The Labs Wananga….

Reflection 3: Experimentation as a way to reframe failure and KPIs

Reflection 4: Experimentation on a continuum between exploration and validation

Reflection 5: Experimentation as cultural change…(More)”.

Ethics of the Health-Related Internet of Things: Mapping the Debate

Curated on Posted on by Stefaan Verhulst

Paper by Brent Mittelstadt: “The Internet of Things is increasingly spreading into the domain of medical and social care. Internet-enabled devices for monitoring and managing the health and well-being of users outside of traditional medical institutions have rapidly become common tools to support healthcare. Health-related Internet of Things (H-IoT) technologies increasingly play a key role in health management, for purposes including disease prevention, real-time tele-monitoring of patient’s functions, testing of treatments, fitness and well-being monitoring, medication dispensation, and health research data collection. H-IoT promises many benefits for health and healthcare. However, it also raises a host of ethical problems stemming from the inherent risks of Internet enabled devices, the sensitivity of health-related data, and their impact on the delivery of healthcare. This paper maps the main ethical problems that have been identified by the relevant literature and identifies key themes in the on-going debate on ethical problems concerning H-IoT….(More)”

Innovations in Federal Statistics: Combining Data Sources While Protecting Privacy

Curated on Posted on by Stefaan Verhulst

Report by the National Academies of Sciences’s Panel on Improving Federal Statistics for Policy and Social Science: “Federal government statistics provide critical information to the country and serve a key role in a democracy. For decades, sample surveys with instruments carefully designed for particular data needs have been one of the primary methods for collecting data for federal statistics. However, the costs of conducting such surveys have been increasing while response rates have been declining, and many surveys are not able to fulfill growing demands for more timely information and for more detailed information at state and local levels.

Innovations in Federal Statistics examines the opportunities and risks of using government administrative and private sector data sources to foster a paradigm shift in federal statistical programs that would combine diverse data sources in a secure manner to enhance federal statistics. This first publication of a two-part series discusses the challenges faced by the federal statistical system and the foundational elements needed for a new paradigm….(More)”

Nudging people to make good choices can backfire

Curated on Posted on by Stefaan Verhulst

Bruce Bower in ScienceNews: “Nudges are a growth industry. Inspired by a popular line of psychological research and introduced in a best-selling book a decade ago, these inexpensive behavior changers are currently on a roll.

Policy makers throughout the world, guided by behavioral scientists, are devising ways to steer people toward decisions deemed to be in their best interests. These simple interventions don’t force, teach or openly encourage anyone to do anything. Instead, they nudge, exploiting for good — at least from the policy makers’ perspective — mental tendencies that can sometimes lead us astray.

But new research suggests that low-cost nudges aimed at helping the masses have drawbacks. Even simple interventions that work at first can lead to unintended complications, creating headaches for nudgers and nudgees alike…

Promising results of dozens of nudge initiatives appear in two government reports issued last September. One came from the White House, which released the second annual report of its Social and Behavioral Sciences Team. The other came from the United Kingdom’s Behavioural Insights Team. Created by the British government in 2010, the U.K. group is often referred to as the Nudge Unit.

In a September 20, 2016, Bloomberg View column, Sunstein said the new reports show that nudges work, but often increase by only a few percentage points the number of people who, say, receive government benefits or comply with tax laws. He called on choice architects to tackle bigger challenges, such as finding ways to nudge people out of poverty or into higher education.

Missing from Sunstein’s comments and from the government reports, however, was any mention of a growing conviction among some researchers that well-intentioned nudges can have negative as well as positive effects. Accepting automatic enrollment in a company’s savings plan, for example, can later lead to regret among people who change jobs frequently or who realize too late that a default savings rate was set too low for their retirement needs. E-mail reminders to donate to a charity may work at first, but annoy recipients into unsubscribing from the donor list.

“I don’t want to get rid of nudges, but we’ve been a bit too optimistic in applying them to public policy,” says behavioral economist Mette Trier Damgaard of Aarhus University in Denmark.

Nudges, like medications for physical ailments, require careful evaluation of intended and unintended effects before being approved, she says. Policy makers need to know when and with whom an intervention works well enough to justify its side effects.

Default downer

That warning rings especially true for what is considered a shining star in the nudge universe — automatic enrollment of employees in retirement savings plans. The plans, called defaults, take effect unless workers decline to participate….

But little is known about whether automatic enrollees are better or worse off as time passes and their personal situations change, says Harvard behavioral economist Brigitte Madrian. She coauthored the 2001 paper on the power of default savings plans.

Although automatic plans increase savings for those who otherwise would have squirreled away little or nothing, others may lose money because they would have contributed more to a self-directed retirement account, Madrian says. In some cases, having an automatic savings account may encourage irresponsible spending or early withdrawals of retirement money (with penalties) to cover debts. Such possibilities are plausible but have gone unstudied.

In line with Madrian’s concerns, mathematical models developed by finance professor Bruce Carlin of the University of California, Los Angeles and colleagues suggest that people who default into retirement plans learn less about money matters, and share less financial information with family and friends, than those who join plans that require active investment choices.

Opt-out savings programs “have been oversimplified to the public and are being sold as a great way to change behavior without addressing their complexities,” Madrian says. Research needs to address how well these plans mesh with individuals’ personalities and decision-making styles, she recommends….

Researchers need to determine how defaults and other nudges instigate behavior changes before unleashing them on the public, says philosopher of science Till Grüne-Yanoff of the Royal Institute of Technology in Stockholm….

Sometimes well-intentioned, up-front attempts to get people to do what seems right come back to bite nudgers on the bottom line.

Consider e-mail prompts and reminders. ….A case in point is a study submitted for publication by Damgaard and behavioral economist Christina Gravert of the University of Gothenburg in Sweden. E-mailed donation reminders sent to people who had contributed to a Danish anti-poverty charity increased the number of donations in the short term, but also triggered an upturn in the number of people unsubscribing from the list.

People’s annoyance at receiving reminders perceived as too frequent or pushy cost the charity money over the long haul, Damgaard holds. Losses of list subscribers more than offset the financial gains from the temporary uptick in donations, she and Gravert conclude.

“Researchers have tended to overlook the hidden costs of nudging,” Damgaard says….(More)”