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This panel will discuss the trend by which law and regulation are increasingly “translated” into technology. Government increasingly utilizes technology in making decisions; regulators increasingly expect private actors to incorporate technological means to “force” compliance with legal mandates; and private actors increasingly attempt to “build-in” legal compliance into the technologies they use, and products they build. While technology offers great promise as a “regulator,” however, the translation of law to “code” poses several distinct challenges: while law’s application changes over time, technological decision rules are fixed by computer code; while law is interpreted by lawyers, government officials and courts applying human judgment as new circumstances arise, the translation of legal mandates to technological ones is done, ex ante, by private actors trained in computer science; and while our legal system emphasizes transparency in legal decisionmaking, technological decisions are frequently opaque and inaccessible.
Lecture Note:
– Roger Brownsword (PPT)
Legislative drafting occurs against a background set of defaults embodied in norms and the built environment. Legislators, like others, often fail to appreciate the plasticity of the built environment against which they legislate and the relatively disruptive cycle of innovation. Laws preference for flexible standards, multi-part balancing tests, and the vague and ambiguous qualities of natural languages creates tension with the binary structures and formal languages used to establish system requirements further complicating legislative drafting. Judges, system designers, and academics have bemoaned the resulting problems of translation, evolvability, and lock-in. This panel will discuss these issues and seek to identify strategies for drafting legislation and system requirements.
Lunch and David Nelson Memorial Lecture: Sponsored by Morrison & Foerster LLP
– Helen Nissenbaum’s Keynote Presentation (mp3)
This panel explores how technology affects environmental regulation. Technology impacts environmental law in a variety of ways, such as the need for the regulatory system to adjust to risks caused by novel technologies like nanotech, or the ways in which improvements in modeling affect regulation in permits. The primary focus of this panel, however, will be on the interaction between new technologies and monitoring (which in turn can affect the feasibility of regulation). Two key examples are the potential use of “smart dust” [nano-sensors] for environmental monitoring and the prospects for carbon monitoring. Another possible example would be smart-metering as a basis for more sophisticated demand-side management of electricity. By changing what we can monitor, these new technologies can change what we can regulate or the reliability of the models on which we base regulation.
Lecture Note:
– Molly K. Macauley (PPT)
Privacy advocates and regulators, as well as industry, have increasingly turned to technological features and systems – such as “privacy by design” as well as technological decision-support systems – to constrain and guide behaviors in ways intended to conform with law. These questions implicate the ways that the standardization of privacy may promote that effort, and the possibilities and perils of developing such privacy taxonomies for use in corporate decisionmaking.
Lecture Notes:
– Frederick Hirsch (PPT)
– Joanne McNabb (PPT)
– Ira Rubinstein (PPT)
Technology increasingly provides means to shape and improve risk management in the governance of a variety of arenas, from financial markets to terrorism prevention to nuclear power management. This panel considers the tremendous potential of such technology, and explores areas of caution.
Lecture Notes:
– George Apostolakis (PPT)
– Patricia Grossi (PPT)
– Eric Talley (PPT)