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Algorithmic Regulation and Personalized Law: A Handbook

Algorithmic Regulation and Personalized Law: A Handbook

Author: Christoph Busch; Alberto De Franceschi
Publisher: Hart Publishing
ISBN: 9781509931750
Published In: December 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

List Price: HKD 2,210.00

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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.

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

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