LAW TECHNOLOGY AND SOCIETY NOTES
COURSE OVERVIEW
W 1: Technology as a regulatory target
W 2: Why do we regulate?
W 3: When do we regulate?
W 4: Should we regulate?
W 5: Who can regulate? Legitimacy and accountability
W 6: How do we regulate?
W 7: Presentation skills
W 8: Digital rights and online platforms
W 9: The global race of AI
W 10: Climate Change, Technology, Society
1
, Week 1: Technology as a regulatory target
LTS model - a simple model that explains how a new technology (that does not exist in a
vacuum) gives rise to an issue/new concern that needs intervention.
- Developers of new pieces of technology take regulation and fundamental values into
account when they create new technology.
- But it is mutual, because values change over time with the continuous use of
technology as well as regulation may also change.
- We start with some new technology that was created in response to a certain need of
the public and within some regulatory limits (for example self-driving cars)
- This new technology and its use can give rise to problems and risks.
- At this moment people may call for action in the form of new normative intervention
(for example developers which are not legal experts may create something that is not
fully compliant with regulations)
- In existing regulation there may be lacunae, lack of enforcement, unintended effects
=> regulatory gaps, we may need to intervene
- Intervention needed/desired?
- It is generally assumed that new technologies need new regulations, BUT “if it ain’t
broke, don’t fix it!” and “flawed law syndrome”.
- Law is inherently adaptable and it can cope with new phenomena because it is
technology-neutral in many cases.
- Generally, the main way of intervention is enforcement of existing rules, not creating
new ones, unless the existing regulation are unable to cover the situations and the
cycle repeats.
Functions of the LTS model:
- It shows that there is a coordination between actions and responses.
- It offers perspectives.
- It is a critical model because it contains reflection points: What technology
features/characteristics interests? What problems/risks are there? Why and who raises
the issue? What are the stakeholders? Who should regulate and why? When to
regulate and what aspects? *Collingridge dilemma
- it provides also toolboxes (science and technology studies; ethics and law)
2
, - it helps us point in the direction of solutions.
- it helps us analyse and develop interventions with either soft or hard law, under
different modalities: law, norms, market, architecture.
- why regulation? It hampers innovations, social utility…
- for example, in the case of self-driving cars, article 8 of the Convention on Road
Traffic (Vienna Convention) concerning drivers is a constraint, but an ammendamant
to the UN Convention on Road Traffic will let drivers take their hands off the wheel
of self-driving cars (it was pushed by Germany, Italy and France)
- With this kind of amendments, regulation and technology are aligned again.
Class notes
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'
Ronald Leenes, Regulating New Technologies in in Times of Change, (2019)
Effects of Over Regulation
1. Needless direct costs for society
2. Inefficient use of government effort
3. Needless restriction of individual liberties and privacy
4. Constraints on technological innovation
Questions to ponder on:
• What is regulation?
• What are the social and legal issues caused by this technology?
• What should we exactly be regulating?
Week 2: Why do we regulate? – Regulatory theories
Bronwen Morgan & Karen Yeung, ‘Chapter 2: Theories of regulation’. In An
introduction to Law and Regulation: Text and Materials (Cambridge University Press
2007)
I. Introduction
• A theory of regulation is a set of propositions or hypotheses about why regulation emerges,
which actors contribute to that emergence and typical patterns of interaction between
regulatory actors.
• Firstly, some theories assume a relatively clear dividing line between public and private
actors and institutions while others view the line as blurred both in theory and practice.
• Secondly, some theories focus mainly on economically defined goals, factors and
influences, while others supplement this focus with attention to more broadly defined
political goals, factors and influences.
Theories of regulation main categories:
3
, 1. public interest theories - attribute to legislators (and others responsible for the design and
implementation of regulation) a desire to pursue collective goals with the aim of promoting
the general welfare of the community.
2. private interest theories - are sceptical of the so-called ‘public interestedness’ of legislators
and policy-makers, recognising that regulation often benefits particular groups in society, and
not always those it was ostensibly intended to benefit.
3. institutionalist theories - tend to emphasise the interdependency of state and non-state
actors in the pursuit of both public benefit and private gain within regulatory regimes.
• Where regulation is understood essentially as state intervention into the economy by making
and applying legal rules, theories of regulation can be seen as an explanation of how and why
legislative standards come about.
• The 1st an 2nd category can be approached as accounts of what happens to make
government actors pass detailed rules that govern the conduct of private actors.
• Some public interest theories of regulation may explain the emergence of regulation as a
response to market failure, yet also prescribe regulation as the ‘correct’ response to market
failure, because regulation should pursue the goal of achieving economic efficiency.
• Some private interest theories explain the emergence of regulation as a result of the pressure
of private interest groups seeking to secure benefits for themselves.
• Some (but not all) private interest explanations may also be accompanied by a prescriptive
assessment of whether the outcomes resulting from the processes they document are
economically efficient.
• Both between public and private interest theories, and between explanatory and prescriptive
motivations
II. Public interest theories
A. Welfare economics approaches
• It suggests that regulation is a response to imperfections in the market known as ‘market
failures’. Correction of market failures increases the community’s general welfare and is thus
in the public interest.
• Those who press for regulation in response to market failures are agents of the public
interest.
• Market failures can be typically defined by categories of monopoly (and other
anticompetitive behaviour), externalities, public goods and information asymmetries.
• Regulation is cast as a social practice that does or should function as a means to an end: that
of maximising general welfare, conceived in terms of maximising allocative efficiency.
• Public interest theories of regulation tend to assume that regulation is embedded within
legal rules enacted by legislatures, who may then delegate detailed rule creation to regulatory
officials along with sometimes considerable discretion in developing such detailed rules.
• Public interest theories of the welfare economic kind adopt an instrumentalist view of the
law, regarding it, as Tony Prosser puts it in a subsequent extract, ‘as a tool used by state
bodies to achieve their ends through the design of institutions’. Anthony Ogus, ‘Regulation’
(2004)
- We can see regulation as the necessary exercise of collective power through government in
order to cure ‘market failures’ to protect the public from such evils as monopoly behaviour,
4
COURSE OVERVIEW
W 1: Technology as a regulatory target
W 2: Why do we regulate?
W 3: When do we regulate?
W 4: Should we regulate?
W 5: Who can regulate? Legitimacy and accountability
W 6: How do we regulate?
W 7: Presentation skills
W 8: Digital rights and online platforms
W 9: The global race of AI
W 10: Climate Change, Technology, Society
1
, Week 1: Technology as a regulatory target
LTS model - a simple model that explains how a new technology (that does not exist in a
vacuum) gives rise to an issue/new concern that needs intervention.
- Developers of new pieces of technology take regulation and fundamental values into
account when they create new technology.
- But it is mutual, because values change over time with the continuous use of
technology as well as regulation may also change.
- We start with some new technology that was created in response to a certain need of
the public and within some regulatory limits (for example self-driving cars)
- This new technology and its use can give rise to problems and risks.
- At this moment people may call for action in the form of new normative intervention
(for example developers which are not legal experts may create something that is not
fully compliant with regulations)
- In existing regulation there may be lacunae, lack of enforcement, unintended effects
=> regulatory gaps, we may need to intervene
- Intervention needed/desired?
- It is generally assumed that new technologies need new regulations, BUT “if it ain’t
broke, don’t fix it!” and “flawed law syndrome”.
- Law is inherently adaptable and it can cope with new phenomena because it is
technology-neutral in many cases.
- Generally, the main way of intervention is enforcement of existing rules, not creating
new ones, unless the existing regulation are unable to cover the situations and the
cycle repeats.
Functions of the LTS model:
- It shows that there is a coordination between actions and responses.
- It offers perspectives.
- It is a critical model because it contains reflection points: What technology
features/characteristics interests? What problems/risks are there? Why and who raises
the issue? What are the stakeholders? Who should regulate and why? When to
regulate and what aspects? *Collingridge dilemma
- it provides also toolboxes (science and technology studies; ethics and law)
2
, - it helps us point in the direction of solutions.
- it helps us analyse and develop interventions with either soft or hard law, under
different modalities: law, norms, market, architecture.
- why regulation? It hampers innovations, social utility…
- for example, in the case of self-driving cars, article 8 of the Convention on Road
Traffic (Vienna Convention) concerning drivers is a constraint, but an ammendamant
to the UN Convention on Road Traffic will let drivers take their hands off the wheel
of self-driving cars (it was pushed by Germany, Italy and France)
- With this kind of amendments, regulation and technology are aligned again.
Class notes
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'
Ronald Leenes, Regulating New Technologies in in Times of Change, (2019)
Effects of Over Regulation
1. Needless direct costs for society
2. Inefficient use of government effort
3. Needless restriction of individual liberties and privacy
4. Constraints on technological innovation
Questions to ponder on:
• What is regulation?
• What are the social and legal issues caused by this technology?
• What should we exactly be regulating?
Week 2: Why do we regulate? – Regulatory theories
Bronwen Morgan & Karen Yeung, ‘Chapter 2: Theories of regulation’. In An
introduction to Law and Regulation: Text and Materials (Cambridge University Press
2007)
I. Introduction
• A theory of regulation is a set of propositions or hypotheses about why regulation emerges,
which actors contribute to that emergence and typical patterns of interaction between
regulatory actors.
• Firstly, some theories assume a relatively clear dividing line between public and private
actors and institutions while others view the line as blurred both in theory and practice.
• Secondly, some theories focus mainly on economically defined goals, factors and
influences, while others supplement this focus with attention to more broadly defined
political goals, factors and influences.
Theories of regulation main categories:
3
, 1. public interest theories - attribute to legislators (and others responsible for the design and
implementation of regulation) a desire to pursue collective goals with the aim of promoting
the general welfare of the community.
2. private interest theories - are sceptical of the so-called ‘public interestedness’ of legislators
and policy-makers, recognising that regulation often benefits particular groups in society, and
not always those it was ostensibly intended to benefit.
3. institutionalist theories - tend to emphasise the interdependency of state and non-state
actors in the pursuit of both public benefit and private gain within regulatory regimes.
• Where regulation is understood essentially as state intervention into the economy by making
and applying legal rules, theories of regulation can be seen as an explanation of how and why
legislative standards come about.
• The 1st an 2nd category can be approached as accounts of what happens to make
government actors pass detailed rules that govern the conduct of private actors.
• Some public interest theories of regulation may explain the emergence of regulation as a
response to market failure, yet also prescribe regulation as the ‘correct’ response to market
failure, because regulation should pursue the goal of achieving economic efficiency.
• Some private interest theories explain the emergence of regulation as a result of the pressure
of private interest groups seeking to secure benefits for themselves.
• Some (but not all) private interest explanations may also be accompanied by a prescriptive
assessment of whether the outcomes resulting from the processes they document are
economically efficient.
• Both between public and private interest theories, and between explanatory and prescriptive
motivations
II. Public interest theories
A. Welfare economics approaches
• It suggests that regulation is a response to imperfections in the market known as ‘market
failures’. Correction of market failures increases the community’s general welfare and is thus
in the public interest.
• Those who press for regulation in response to market failures are agents of the public
interest.
• Market failures can be typically defined by categories of monopoly (and other
anticompetitive behaviour), externalities, public goods and information asymmetries.
• Regulation is cast as a social practice that does or should function as a means to an end: that
of maximising general welfare, conceived in terms of maximising allocative efficiency.
• Public interest theories of regulation tend to assume that regulation is embedded within
legal rules enacted by legislatures, who may then delegate detailed rule creation to regulatory
officials along with sometimes considerable discretion in developing such detailed rules.
• Public interest theories of the welfare economic kind adopt an instrumentalist view of the
law, regarding it, as Tony Prosser puts it in a subsequent extract, ‘as a tool used by state
bodies to achieve their ends through the design of institutions’. Anthony Ogus, ‘Regulation’
(2004)
- We can see regulation as the necessary exercise of collective power through government in
order to cure ‘market failures’ to protect the public from such evils as monopoly behaviour,
4
