Beyond rules and standards: Micro-directives as the future of law in the algorithmic society

Anthony J. Casey (Univ. of Chicago Law) and Anthony Niblett (Univ. of Toronto Law) open their article, The Death of Rules and Standards, with the following statement:

Imagine a world where lawmakers enact a catalog of precisely tailored laws, specifying the exact behavior that is permitted in every situation. The lawmakers have enough information to anticipate virtually all contingencies, such that laws are perfectly calibrated to their purpose – they are neither over- nor under-inclusive. Now imagine that when a citizen in this world faces a legal decision, she is clearly informed of exactly how to comply with every relevant law before she acts. This citizen does not have to weigh the reasonableness of her actions; nor, does she have to search for the content of a law. She just obeys a simple directive. The laws at work in this world are not traditional rules and standards. Instead, they take a new form that captures the benefits of both rules and standards without incurring the costs. This new form – we call it the micro-directive – is the future of law.

Very interesting. Here’s the abstract:

Scholars have examined the lawmakers’ choice between rules and standards for decades. This paper, however, explores the possibility of a new form of law that renders that choice unnecessary. Advances in technology (such as big data and artificial intelligence) will give rise to this new form – the micro-directive – which will provide the benefits of both rules and standards without the costs of either.

Lawmakers will be able to use predictive and communication technologies to enact complex legislative goals that are translated by machines into a vast catalog of simple commands for all possible scenarios. When an individual citizen faces a legal choice, the machine will select from the catalog and communicate to that individual the precise context-specific command (the micro-directive) necessary for compliance. In this way, law will be able to adapt to a wide array of situations and direct precise citizen behavior without further legislative or judicial action. A micro-directive, like a rule, provides a clear instruction to a citizen on how to comply with the law. But, like a standard, a micro-directive is tailored to and adapts to each and every context.

While predictive technologies such as big data have already introduced a trend toward personalized default rules, in this paper we suggest that this is only a small part of a larger trend toward context-specific laws that can adapt to any situation. As that trend continues, the fundamental cost trade-off between rules and standards will disappear, changing the way society structures and thinks about law.

Recommended. — Joe

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