When Crowdsourcing Works (And Doesn’t Work) In The Law

Curated on Posted on by Stefaan Verhulst

LawXLab: “Crowdsourcing has revolutionized several industries.  Wikipedia has replaced traditional encyclopedias.  Stack Overflow houses the collective knowledge of software engineering.  And genealogical information stretches back thousands of years.  All due to crowdsourcing.

These successes have led to several attempts to crowdsource the law.  The potential is enticing.  The law is notoriously difficult to access, especially for non-lawyers.  Amassing the collective knowledge of the legal community could make legal research easier for lawyers, and open the law to lay people, reshaping the legal industry and displacing traditional powers like Westlaw and Lexis. As one legal crowdsourcing site touted, “No lawyer is smarter than all lawyers.”

But crowdsourcing the law has proved difficult.  The list of failed legal crowdsourcing sites is long.  As one legal commentator noted, “The legal Web is haunted by the spirits of the many crowdsourced sites that have come and gone.” (Ambrogi http://goo.gl/ZPuXh8).  …

There are several aspects of the law that make crowdsourcing difficult.  First, the base of contributors is not large.  According to the ABA, there were only 1.3 million licensed lawyers in 2015. (http://goo.gl/kw6Kab).  Second, there is no ethos of sharing information, like there is in other fields.  To the contrary, there is a tradition of keeping information secret, enshrined in rules regarding privilege, work product protection, and trade secrets.  Legal professionals disclose information with caution.

Every attempt to crowdsource the law, however, has not been a failure.  And the successes chart a promising path forward.  While lawyers will not go out of their way to crowdsource the law, attempts to weave crowdsourcing into activities that legal professionals already perform have achieved promising results.

For example, Casetext’s WeCite initiative has proved immensely successful.  When a judge cites another case in a published opinion, WeCite asks the reader to characterize case references as (1) positive, (2) referencing, (3) distinguishing, or (4) negative.  In 9 months, Casetext’s community had crowdsourced “over 300,000 citator entries.” (CALI https://goo.gl/yT9mc4.)  CaseText used these entries to fuel its flagship product, CARA.  CARA uses those crowdsourced citation entries to suggest other cases for litigators to cite.

The key to WeCite’s success is that it weaved crowdsourcing into an activity that lawyers and law students were already doing–reading cases.  All the reader needed to do was click a button to signify how the case was cited–a minor detour.

Another example is CO/COUNSEL, a site that crowdsources visual maps of the law. The majority of CO/COUNSEL’s crowdsourced contributions come from law school classes.  Teachers use the site as a teaching tool.  Classes map the law during the course of a semester as a learning activity.  In a few months, CO/COUNSEL received over 10,000 contributions.  As with WeCite, using CO/COUNSEL was not a big detour for professors.  It fit into an activity they were performing already–teaching….(More)”.

Artificial intelligence prevails at predicting Supreme Court decisions

Curated on Posted on by Stefaan Verhulst

Matthew Hutson at Science: “See you in the Supreme Court!” President Donald Trump tweeted last week, responding to lower court holds on his national security policies. But is taking cases all the way to the highest court in the land a good idea? Artificial intelligence may soon have the answer. A new study shows that computers can do a better job than legal scholars at predicting Supreme Court decisions, even with less information.

Several other studies have guessed at justices’ behavior with algorithms. A 2011 project, for example, used the votes of any eight justices from 1953 to 2004 to predict the vote of the ninth in those same cases, with 83% accuracy. A 2004 paper tried seeing into the future, by using decisions from the nine justices who’d been on the court since 1994 to predict the outcomes of cases in the 2002 term. That method had an accuracy of 75%.

The new study draws on a much richer set of data to predict the behavior of any set of justices at any time. Researchers used the Supreme Court Database, which contains information on cases dating back to 1791, to build a general algorithm for predicting any justice’s vote at any time. They drew on 16 features of each vote, including the justice, the term, the issue, and the court of origin. Researchers also added other factors, such as whether oral arguments were heard….

From 1816 until 2015, the algorithm correctly predicted 70.2% of the court’s 28,000 decisions and 71.9% of the justices’ 240,000 votes, the authors report in PLOS ONE. That bests the popular betting strategy of “always guess reverse,” which has been the case in 63% of Supreme Court cases over the last 35 terms. It’s also better than another strategy that uses rulings from the previous 10 years to automatically go with a “reverse” or an “affirm” prediction. Even knowledgeable legal experts are only about 66% accurate at predicting cases, the 2004 study found. “Every time we’ve kept score, it hasn’t been a terribly pretty picture for humans,” says the study’s lead author, Daniel Katz, a law professor at Illinois Institute of Technology in Chicago…..Outside the lab, bankers and lawyers might put the new algorithm to practical use. Investors could bet on companies that might benefit from a likely ruling. And appellants could decide whether to take a case to the Supreme Court based on their chances of winning. “The lawyers who typically argue these cases are not exactly bargain basement priced,” Katz says….(More)”.

Beyond Networks – Interlocutory Coalitions, the European and Global Legal Orders

Curated on Posted on by Stefaan Verhulst

Book by Gianluca Sgueo: “….explores the activism promoted by organised networks of civil society actors in opening up possibilities for more democratic supranational governance. It examines the positive and negative impact that such networks of civil society actors – named “interlocutory coalitions” – may have on the convergence of principles of administrative governance across the European legal system and other supranational legal systems.

The book takes two main controversial aspects into account: the first relates to the convergence between administrative rules pertaining to different supranational regulatory systems. Traditionally, the spread of methods of administrative governance has been depicted primarily against the background of the interactions between the domestic and the supranational arena, both from a top-down and bottom-up perspective. However, the exploration of interactions occurring at the supranational level between legal regimes is still not grounded on adequate empirical evidence. The second controversial aspect considered in this book consists of the role of civil society actors operating at the supranational level. In its discussion of the first aspect, the book focuses on the relations between the European administrative law and the administrative principles of law pertaining to other supranational regulatory regimes and regulators, including the World Bank, the International Monetary Fund, the World Trade Organization, the United Nations, the Organization for Economic Cooperation and Development, the Asian Development Bank, and the Council of Europe. The examination of the second aspect involves the exploration of the still little examined, but crucial, role of civil society organised networks in shaping global administrative law. These “interlocutory coalitions” include NGOs, think tanks, foundations, universities, and occasionally activists with no formal connections to civil society organisations. The book describes such interlocutory coalitions as drivers of harmonized principles of participatory democracy at the European and global levels. However, interlocutory coalitions show a number of tensions (e.g. the governability of coalitions, the competition among them) that may hamper the impact they have on the reconfiguration of individuals’ rights, entitlements and responsibilities in the global arena….(More)’

Beyond Bureaucracy: Towards Sustainable Governance Informatisation

Curated on Posted on by Stefaan Verhulst

Book edited by Alois A. Paulin, Leonidas G. Anthopoulos and Christopher Reddick: “… examines the role of bureaucracy in modern technologically advanced societies, the traditional models of governance, and the potential of information technology to fundamentally change and improve governance. In the area of public-domain governance, information and communication technologies (ICTs) have empowered public agencies to improve their activities and to strengthen the efficiency of their operations. Technology has enabled optimized transfer of knowledge and information between government agencies, more efficient supervision and control of relationships with citizens, and higher efficiency in law enforcement through better access to information. Throughout the last decades, technology has been used to strengthen the role of state bureaucracies and the relationship between the civil service and the citizens. We have witnessed the transformative powers of ICTs in private-sector enterprises in well-structured technological landscapes, which has produced new ecosystems comprised of software developers, providers, and consumers who provide and consume new products and services in ecosystems that are based on clear technological standards and shared modular generic artefacts, which allow for distributed peer production. ICTs will shape cultural and civic discourse and create products, services and tools, relying on the open toolsets, technologies and exchange of knowledge between peers. This book will be of particular interest to government CIOs, IT/IS managers, researchers, students, and practitioners in technical sciences, public administration, business management, public policy and IS management….(More)”.

Selected Readings on Blockchain Technology and Its Potential for Transforming Governance

Curated on Posted on by Prianka Srinivasan

By Prianka Srinivasan, Robert Montano, Andrew Young, and Stefaan G. Verhulst

The Living Library’s Selected Readings series seeks to build a knowledge base on innovative approaches for improving the effectiveness and legitimacy of governance. This curated and annotated collection of recommended works on the topic of blockchain and governance was originally published in 2017.

Introduction

In 2008, an unknown source calling itself Satoshi Nakamoto released a paper named Bitcoin: A Peer-to-Peer Electronic Cash System which introduced blockchain technology. Blockchain is a novel system that uses a distributed ledger to record transactions and ensure compliance. Blockchain technology relies on an ability to act as a vast, transparent, and secure public database.

It has since gained recognition as a tool to transform governance by creating a decentralized system to

  • manage and protect identity,
  • trace and track; and
  • incentivize smarter social and business contracts.

These applications cast blockchain as a tool to confront certain public problems in the digital age.

The readings below represent selected readings on the applications for governance. They have been categorized by theme – Governance Applications, Identity Protection and Management, Tracing and Tracking, and Smart Contracts.

Selected Reading List

Governance Applications

  • Atzori, Marcella – The Center for Blockchain Technologies (2015) Blockchain Technology and Decentralized Governance: Is the State Still Necessary? –  Aims to investigate the political applications of blockchain, particularly in encouraging government decentralization by considering to what extent blockchain can be viewed as “hyper-political tools.” The paper suggests that the domination of private bodies in blockchain systems highlights the continued need for the State to remain as a central point of coordination.
  • Boucher, Philip. – European Parliamentary Research Service (2017) How blockchain technology could change our lives – This report commissioned by the European Parliamentary Research Service provides a deep introduction to blockchain theory and its applications to society and political systems, providing 2 page briefings on currencies, digital content, patents, e-voting, smart contracts, supply chains, and blockchain states.
  • Boucher, Philip. – Euroscientist (2017) Are Blockchain Applications Guided by Social Values? – This report by a policy analyst at the European Parliament’s Scientific foresight unit, evaluates the social and moral contours of blockchain technology, arguing that “all technologies have value and politics,” and blockchain is no exception. Calls for greater scrutiny on the possibility for blockchain to act as a truly distributed and transparent system without a “middleman.”
  • Cheng, Steve;  Daub, Matthew; Domeyer, Axel; and Lundqvist, Martin –McKinsey & Company (2017)  Using Blockchain to Improve Data Management in the Public Sector–This essay considers the potential uses of blockchain technology for the public sector to improve the security of sensitive information collected by governments and as a way to simplify communication with specialists.
  • De Filippi, Primavera; and Wright, Aaron –Paris University & Cordoza School of Law (2015)  Decentralized Blockchain Technology and the Rise of Lex Cryptographia – Looks at how to regulate blockchain technology, particularly given its implications on governance and society. Argues that a new legal framework needs to emerge to take into account the applications of self-executing blockchain technology.
  • Liebenau, Jonathan and Elaluf-Calderwood, Silvia Monica. – London School of Economics & Florida International University (2016) Blockchain Innovation Beyond Bitcoin and Banking. – A paper that explores the potential of blockchain technology in financial services and in broader digital applications, considers regulatory possibility and frameworks, and highlights the innovative potential of blockchain.
  • Prpić, John – Lulea University of Technology (2017) Unpacking Blockchains – This short paper provides a brief introduction to the use of Blockchain outside monetary purposes, breaking down its function as a digital ledger and transaction platform.
  • Stark, Josh – Ledger Labs (2016) Making Sense of Blockchain Governance Applications –This CoinDesk article discusses, in simple terms, how blockchain technology can be used to accomplish what is called “the three basic functions of governance.”
  • UK Government Chief Scientific Adviser (2016)  Distributed Ledger Technology: Beyond Blockchain – A report from the UK Government that investigates the use of blockchain’s “distributed leger” as a database for governments and other institutions to adopt.

Identity Protection and Management

  • Baars, D.S. – University of Twente (2016) Towards Self-Sovereign Identity Using Blockchain Technology. – A study exploring self-sovereign identity – i.e. the ability of users to control their own digital identity – that led to the creation of a new architecture designed for users to manage their digital ID. Called the Decentralized Identity Management System, it is built on blockchain technology and is based on the concept of claim-based identity.
  • Burger, Eric and Sullivan, Clare Linda. – Georgetown University (2016) E-Residency and Blockchain. – A case study focused on an Estonian commercial initiative that allows for citizens of any nation to become an “Estonian E-Resident.” This paper explores the legal, policy, and technical implications of the program and considers its impact on the way identity information is controlled and authenticated.
  • Nathan, Oz; Pentland, Alex ‘Sandy’; and Zyskind, Guy – Security and Privacy Workshops (2015) Decentralizing Privacy: Using Blockchain to Protect Personal Data – Describes the potential of blockchain technology to create a decentralized personal data management system, making third-party personal data collection redundant.
  • De Filippi, Primavera – Paris University (2016) The Interplay Between Decentralization and Privacy: The Case of Blockchain Technologies – A journal entry that weighs the radical transparency of blockchain technology against privacy concerns for its users, finding that the apparent dichotomy is not as at conflict with itself as it may first appear.

Tracing and Tracking

  • Barnes, Andrew; Brake, Christopher; and Perry, Thomas – Plymouth University (2016) Digital Voting with the use of Blockchain Technology – A report investigating the potential of blockchain technology to overcome issues surrounding digital voting, from voter fraud, data security and defense against cyber attacks. Proposes a blockchain voting system that can safely and robustly manage these challenges for digital voting.
  • The Economist (2015), “Blockchains The Great Chain of Being Sure About Things.” – An exploratory article that explores the potential usefulness of a blockchain-based land registry in places like Honduras and Greece, transaction registries for trading stock, and the creation of smart contracts.
  • Lin, Wendy; McDonnell, Colin; and Yuan, Ben – Massachusetts Institute of Technology (2015)  Blockchains and electronic health records. – Suggests the “durable transaction ledger” fundamental to blockchain has wide applicability in electronic medical record management. Also, evaluates some of the practical shortcomings in implementing the system across the US health industry.

Smart Contracts

  • Iansiti, Marco; and Lakhani, Karim R. – Harvard Business Review (2017) The Truth about Blockchain – A Harvard Business Review article exploring how blockchain technology can create secure and transparent digital contracts, and what effect this may have on the economy and businesses.
  • Levy, Karen E.C. – Engaging Science, Technology, and Society (2017) Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law. – Article exploring the concept of blockchain-based “smart contracts” – contracts that securely automate and execute obligations without a centralized authority – and discusses the tension between law, social norms, and contracts with an eye toward social equality and fairness.

Annotated Selected Reading List

Cheng, Steve, Matthias Daub, Axel Domeyer, and Martin Lundqvist. “Using blockchain to improve data management in the public sector.” McKinsey & Company. Web. 03 Apr. 2017. http://bit.ly/2nWgomw

  • An essay arguing that blockchain is useful outside of financial institutions for government agencies, particularly those that store sensitive information such as birth and death dates or information about marital status, business licensing, property transfers, and criminal activity.
  • Blockchain technology would maintain the security of such sensitive information while also making it easier for agencies to use and access critical public-sector information.
  • Despite its potential, a significant drawback for use by government agencies is the speed with which blockchain has developed – there are no accepted standards for blockchain technologies or the networks that operate them; and because many providers are start-ups, agencies might struggle to find partners that will have lasting power. Additionally, government agencies will have to remain vigilant to ensure the security of data.
  • Although best practices will take some time to develop, this piece argues that the time is now for experimentation – and that governments would be wise to include blockchain in their strategies to learn what methods work best and uncover how to best unlock the potential of blockchain.

“The Great Chain of Being Sure About Things.” The Economist. The Economist Newspaper, 31 Oct. 2015. Web. 03 Apr. 2017. http://econ.st/1M3kLnr

  • This is an exploratory article written in The Economist that examines the various potential uses of blockchain technology beyond its initial focus on bitcoin:
    • It highlights the potential of blockchain-based land registries as a way to curb human rights abuses and insecurity in much of the world (it specifically cites examples in Greece and Honduras);
    • It also highlights the relative security of blockchain while noting its openness;
    • It is useful as a primer for how blockchain functions as tool for a non-specialist;
    • Discusses “smart contracts” (about which we have linked more research above);
    • Analyzes potential risks;
    • And considers the potential future unlocked by blockchain
  • This article is particularly useful as a primer into the various capabilities and potential of blockchain for interested researchers who may not have a detailed knowledge of the technology or for those seeking for an introduction.

Iansiti, Marco and Lakhani, Karim R. “The Truth About Blockchain.” Harvard Business Review. N.p., 17 Feb. 2017. Web. 06 Apr. 2017. http://bit.ly/2hqo3FU

  • This entry into the Harvard Business Review discusses blockchain’s ability to solve the gap between emerging technological progress and the outdated ways in which bureaucracies handle and record contracts and transactions.
  • Blockchain, the authors argue, allows us to imagine a world in which “contracts are embedded in digital code and stored in transparent, shared databases, where they are protected from deletion, tampering, and revision”, allowing for the removal of intermediaries and facilitating direct interactions between individuals and institutions.
  • The authors compare the emergence of blockchain to other technologies that have had transformative power, such as TCP/IP, and consider the speed with which they have proliferated and become mainstream.
    • They argue that like TCP/IP, blockchain is likely decades away from maximizing its potential and offer frameworks for the adoption of the technology involving both single-use, localization, substitution, and transformation.
    • Using these frameworks and comparisons, the authors present an investment strategy for those interested in blockchain.

IBM Global Business Services Public Sector Team. “Blockchain: The Chain of Trust and its Potential to Transform Healthcare – Our Point of View.” IBM. 2016. http://bit.ly/2oBJDLw

  • This enthusiastic business report from IBM suggests that blockchain technology can be adopted by the healthcare industry to “solve” challenges healthcare professionals face. This is primarily achieved by blockchain’s ability to streamline transactions by establishing trust, accountability, and transparency.
  • Structured around so-called “pain-points” in the healthcare industry, and how blockchain can confront them, the paper looks at 3 concepts and their application in the healthcare industry:
    • Bit-string cryptography: Improves privacy and security concerns in healthcare, by supporting data encryption and enforces complex data permission systems. This allows healthcare professionals to share data without risking the privacy of patients. It also streamlines data management systems, saving money and improving efficiency.
    • Transaction Validity: This feature promotes the use of electronic prescriptions by allowing transactional trust and authenticated data exchange. Abuse is reduced, and abusers are more easily identified.
    • Smart contracts: This streamlines the procurement and contracting qualms in healthcare by reducing intermediaries. Creates a more efficient and transparent healthcare system.
  • The paper goes on to signal the limitations of blockchain in certain use cases (particularly in low-value, high-volume transactions) but highlights 3 use cases where blockchain can help address a business problem in the healthcare industry.
  • Important to keep in mind that, since this paper is geared toward business applications of blockchain through the lens of IBM’s investments, the problems are drafted as business/transactional problems, where blockchain primarily improves efficiency than supporting patient outcomes.

Nathan, Oz; Pentland, Alex ‘Sandy’; and Zyskind, Guy “Decentralizing Privacy: Using Blockchain to Protect Personal Data” Security and Privacy Workshops (SPW). 2015. http://bit.ly/2nPo4r6

  • This technical paper suggests that anonymization and centralized systems can never provide complete security for personal data, and only blockchain technology, by creating a decentralized data management system, can overcome these privacy issues.
  • The authors identify 3 common privacy concerns that blockchain technology can address:
    • Data ownership: users want to own and control their personal data, and data management systems must acknowledge this.
    • Data transparency and auditability: users want to know what data is been collected and for what purpose.
    • Fine-grained access control: users want to be able to easily update and adapt their permission settings to control how and when third-party organizations access their data.
  • The authors propose their own system designed for mobile phones which integrates blockchain technology to store data in a reliable way. The entire system uses blockchain to store data, verify users through a digital signature when they want to access data, and creates a user interface that individuals  can access to view their personal data.
  • Though much of the body of this paper includes technical details on the setup of this blockchain data management system, it provides a strong case for how blockchain technology can be practically implemented to assuage privacy concerns among the public. The authors highlight that by using blockchain “laws and regulations could be programmed into the blockchain itself, so that they are enforced automatically.” They ultimately conclude that using blockchain in such a data protection system such as the one they propose is easier, safer, and more accountable.

Wright, Aaron, and Primavera De Filippi. “Decentralized blockchain technology and the rise of lex cryptographia.” 2015. Available at SSRN . http://bit.ly/2oujvoG

  • This paper proposes that the emergence of blockchain technology, and its various applications (decentralized currencies, self-executing contracts, smart property etc.), will necessitate the creation of a new subset of laws, termed by the authors as “Lex Cryptographia.”
  • Considering the ability for blockchain to “cut out the middleman” there exist concrete challenges to law enforcement faced by the coming digital revolution brought by the technology. These encompass the very benefits of blockchain; for instance, the authors posit that the decentralized, autonomous nature of blockchain systems can act much like “a biological virus or an uncontrollable force of nature” if the system was ill-intentioned. Though this same system can regulate the problems of corruption and hierarchy associated with traditional, centralized systems, their autonomy poses an obvious obstacle for law-enforcement.
  • The paper goes on to details all the possible benefits and societal impacts of various applications of blockchain, finally suggesting there exists a need to “rethink” traditional models of regulating society and individuals. They predict a rise in Lex Cryptographia “characterized by a set of rules administered through self-executing smart contracts and decentralized (and potentially autonomous) organizations.” Much of these regulations depend upon the need to supervise restrictions placed upon blockchain technology that may chill its application, for instance corporations who may choose to purposefully avoid including any blockchain-based applications in their search engines so as to stymie the adoption of this technology.

Killer Apps: Vanishing Messages, Encrypted Communications, and Challenges to Freedom of Information Laws When Public Officials ‘Go Dark’

Curated on Posted on by Stefaan Verhulst

Paper by Daxton Stewart: “In the early weeks of the new presidential administration, White House staffers were communicating among themselves and leaking to journalists using apps such as Signal and Confide, which allow users to encrypt messages or to make them vanish after being received. By using these apps, government officials are “going dark” by avoiding detection of their communications in a way that undercuts freedom of information laws. In this paper, the author explores the challenges presented by encrypted and ephemeral messaging apps when used by government employees, examining three policy approaches – banning use of the apps, enhancing existing archiving and record-keeping practices, or legislatively expanding quasi-government body definitions – as potential ways to manage the threat to open records laws these “killer apps” present….(More)”.

Networked Governance: New Research Perspectives

Curated on Posted on by Stefaan Verhulst

Book edited by Betina Hollstein, Wenzel Matiaske and Kai-Uwe Schnapp: “This edited volume seeks to explore established as well as emergent forms of governance by combining social network analysis and governance research. In doing so, contributions take into account the increasingly complex forms which governance faces, consisting of different  types of actors (e.g. individuals, states, economic entities, NGOs, IGOs), instruments (e.g. law, suggestions, flexible norms) and arenas from the local up to the global level, and which more and more questions theoretical models that have focused primarily on markets and hierarchies. The topics addressed in this volume are processes of coordination, arriving at and implementing decisions taking place in network(ed) (social) structures; such as governance of work relations, of financial markets, of innovation and politics. These processes are investigated and discussed from sociologists’, political scientists’ and economists’ viewpoints….(More)”.

A How-to Book for Wielding Civic Power

Curated on Posted on by Stefaan Verhulst

Interview by David Bornstein at the New York Times: “Last year, the RAND Survey Research Group asked 3,037 Americans about their political preferences and found that the factor that best predicted support for Donald Trump wasn’t age, race, gender, income, educational attainment or attitudes toward Muslims or undocumented immigrants. It was whether respondents agreed with the statement “People like me don’t have any say about what the government does.”

A feeling of disenfranchisement, or powerlessness, runs deep in the country — and it’s understandable. For most Americans, wages have been flat for 40 years, while incomes have soared for the superrich. Researchers have found, unsurprisingly, that the preferences of wealthy people have a much bigger influence on policy than those of poor or middle-income people.

“I don’t think people are wrong to feel that the game has been rigged,” says Eric Liu, the author of “You’re More Powerful Than You Think: A Citizen’s Guide to Making Change Happen,” an engaging and extremely timely book published last week. “But we’re in a period where across the political spectrum — from the libertarian Tea Party right to the Occupy and Black Lives Matter left — people are pushing back and recognizing that the only remedy is to convert this feeling of ‘not having a say’ into ‘demanding a say.’ ”

Liu, who founded Citizen University, a nonprofit citizen participation organization in Seattle, teaches citizens to do just that. He has also traveled the country, searching across the partisan divide for places where citizens are making democracy work better. In his new book, he has assembled stories of citizen action and distilled them into powerful insights and strategies….

Can you explain the three “core laws of power” you outline in the book?

L. No. 1: Power compounds, as does powerlessness. The rich get richer, and people with clout get more clout.

No. 2: Power justifies itself. In a hundred different ways — propaganda, conventional wisdom, just-so stories — people at the top of the hierarchy tell narratives about why it should be so.

If the world stopped with laws No. 1 and 2, we would be stuck in this doom loop that would tip us toward monopoly and tyranny.

What saves us is law No. 3: Power is infinite. I don’t mean we are all equally powerful. I mean simply and quite literally that we can generate power out of thin air. We do that by organizing….(More)”

Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law

Curated on Posted on by Stefaan Verhulst

Paper by Karen E. C. Levy: “…critiques blockchain-based “smart contracts,” which aim to automatically and securely execute obligations without reliance on a centralized enforcement authority. Though smart contracts do have some features that might serve the goals of social justice and fairness, I suggest that they are based on a thin conception of what law does, and how it does it. Smart contracts focus on the technical form of contract to the exclusion of the social contexts within which contracts operate, and the complex ways in which people use them. In the real world, contractual obligations are enforced through all kinds of social mechanisms other than formal adjudication—and contracts serve many functions that are not explicitly legal in nature, or even designed to be formally enforced. I describe three categories of contracting practices in which people engage (the inclusion of facially unenforceable terms, the inclusion of purposefully underspecified terms, and willful nonenforcement of enforceable terms) to illustrate how contracts actually “work.” The technology of smart contracts neglects the fact that people use contracts as social resources to manage their relations. The inflexibility that they introduce, by design, might short-circuit a number of social uses to which law is routinely put. Therefore, I suggest that attention to the social and relational contexts of contracting are essential considerations for the discussion, development, and deployment of smart contracts….(More)”

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)”.