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Algorithmic Regulation and Personalized Law: A Handbook

Edited by: Christoph Busch, Alberto De Franceschi

ISBN13: 9781509931750

Published: December 2020

Publisher: Hart Publishing

Country of Publication: UK

Format: Hardback

Price: £170.00

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This new handbook takes an innovative look at the current and potential effects of big data and artificial intelligence on the legal system. It explains how technological advances in data collection and information processing will make it possible to change the design of legal rules and tailor them to specific individuals. This new type of “granular legal norms” is part of a broader trend towards algorithmic regulation in the emerging data economy. With practical examples from contract, consumer and tort law, leading experts from Canada, Europe, Israel, and the United States explain how and to what extent legal norms could be personalised. They explore the advantages, limitations and potential dangers of legal micro-targeting and explain how the personalisation of legal norms could change the relationship between individuality, privacy and the protection of general interests. This handbook offers a multi-faceted overview of the emerging field of “personalised law” and provides a unique source of inspiration for scholars, lawyers, judges and lawmakers.

Subjects:: Jurisprudence, Legal Practice Management

Contents:: Part 1: The Concept of Personalized Law; A. Personalizing Default Rules and Disclosure with Big Data (Porat/Strahilevitz); I. Introduction; II. Theories of personalized default rules; III. The feasibility of personalized default rules; IV. Possible Objections and Limitations; V. Personalized disclosure; VI. Conclusion; B. Personalizing Negligence Law (Ben-Shahar/Porat); I. Introduction; II. Personalized negligence under existing law; III. The efficiency of personalized standards; IV. Justice considerations; V. Broadening personalization; VI. Conclusion; C. The Death of Rules and Standards (Casey/Niblett); I. Introduction; II. The emergence of microdirectives and the decline of rules and standards; III. Conclusion; Part 2: Critique and Theoretical Perspectives; D. The Law between Generality and Particularity. Chances and Limits of Personalized Law (Grigoleit/Bender); I. Introduction; II. Distinctions and notional specifications; III. Evolutionary perspectives; IV. Revolutionary perspectives; V. Conclusions; E. Granular Norms and the Concept of Law: A Critique (Auer); I. The Inevitability of Legal Typification; II. The Problem of Algorithmic Discrimination; III. The Scope of Granular Law and the Rise of Consumerism; IV. Regulation and the Rule of Law; V. Granularization and the Problem of Rule-Following; F. Logopoeia: Normative Typification and Granular Norm's Informational Differentiation (Femia); I. More acts or more words: negotia, pragmata, activities; II. Two ways of grasping reality: taming the chaos with Emilio Betti and Tullio Ascarelli; III. End of the journey among the concepts' penumbra. From type to typification, and from typification to dissemination; IV. Big data: quantities make a qualitative shift in nomogenesis; V. Nomogenesis at the intersection point between normative technique and informational limit; VI. The loss of informational innocence; VII. Norms on the move; VIII. Les communications & les commerces; IX. Politics or Algorithmics; G. “Granularization” and Cross-Subsidies: Liberal, Neoliberal and Socialist Perspectives (Denozza/Maugeri); I. Granularization: a consistent outcome of a neoliberal trend; II. The costs of granularization: the many shortcomings of algorithmic governmentality; III. Liberal general principles v. neoliberal “granularized” rules; IV. Is granularization efficient? Abstraction and totality in neoliberal thought; V. Granularization and cross subsidy; VI. What's wrong, if anything, with cross-subsidy; Part 3: Personalization in Contract, Consumer and Tort Law; H. 'Granular Legal Norms' in the Financial Services Trade (Sirena); I. The advent of a digital law; II. The trend towards the personalization of private law: from the 'average consumer' to the 'images of the consumer'; III. The discourse on granular legal norms (particularly with regard to the duties of disclosure provided by European contract law; IV. The personalization of financial services; V. Some final remarks; I. De- or Re-typification through Big Data Analytics? The Case of Consumer Law (Micklitz); I. Clarification and Argument; II. From Typification to Granularization prior to Big Data Analytics; III. From Granularization to Personalization through Big Data Analytics; IV. Big Data Analytics in Law Making and Law Enforcement; V. Prospects for big data analytics in consumer law; VI. Big Data Analytics and Re-typification; J. Personalization of the Law and Unfair Terms in Consumer Contracts (Patti); I. Introduction; II. The setting within the European context; III. The role of personalized law; IV. The enforcement; V. Conclusion; K. Personalization of Tort Law? (von Bar); Part 4: Technological and Behavioral Perspectives; L. Personalized Law and the Behavioral Sciences (Hacker); I. A very short introduction to behavioral law and economics; II. The knowledge problem in behavioral law and economics; III. Examples of personalized behavioral law; IV. The limits of personalized behavioral law; 1. The strength of empirical correlations; 2. Algorithmic bias and discrimination; V. Good governance of personalized behavioral law; 1. Privacy respecting metrics; 2. Oversight and algorithmic auditing; VI. Conclusion; M. “Smart Contract”, “Granular Norms” and Non-Discrimination(Zeno-Zencovich); I. Only words; II. How “smart” can contracts be; III. Creditworthiness; IV. “Granular norms”; V. Non-discrimination in the age of big data; N. Algorithmic Regulation and (Im)Perfect Enforcement in the Personalized Economy (Busch); I. Introduction; II. Big Data and the Crisis of Generalities; III. Making Laws for the Personalized Economy; IV. Governance of Algorithms for Personalized Law; V. Conclusion