Law and complexity  (LAC) Session 2

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Time and Date: 14:15 - 18:00 on 20th Sep 2016

Room: H - Ontvangkamer

Chair: Marion Dumas

22009 Keynote lecture?: What is Law?? Gillian Hadfield
22010 Session 3?: Law, complexity and public policy
22011 Complexity Theory and the Economics of Intellectual Property [abstract]
Abstract: The intellectual property system is a relatively simple concept, but one with extremely ambitious aims. Its aims are no less than to stimulate ?innovation?- the production of the intellectual, cultural and technological artefacts which fuel modern economies. This aim is extremely ambitious because the nature and processes behind innovation are still in many ways opaque. There seems to be a startling disconnect between the acknowledged complexity of innovation systems and the extremely simplistic economic models that underwrite intellectual property.Knowledge production is cumulative and its production systems are complex : markets ?tip?, information ?spills over?, ?(small-world) networks? may form and distribute value 'hubs' according to power laws. Although these observations about the nature of innovation litter the footnotes of intellectual property literature, they are yet to be synthesized into a robust theory of innovation. Despite the acknowledged complexity of innovation, the economics behind intellectual property tends to pivot on a handful of simplifying metaphors: the commons are tragic and every prisoner is caught in a dilemma. Although these metaphors have come under increasing fire in recent years from scholars like Elinor Ostrom, Lawrence Lessig, Brett Frischmann and Yochai Benkler, all of whom argue that they conceal more than they reveal and do not match empirical findings, no robust and sufficiently rich theory of innovation has emerged from the criticism. Why do these metaphors still drive the justifications for intellectual property? How does the forefront of intellectual property scholarship grapple with the acknowledged complexity of innovation, if at all? And how do the Courts take all this on board in the enforcement of IP? This paper will briefly sketch some notes to these questions, with the aim to identify projects that may contribute to answering them
Carl Mair
22012 A Framework for an Agent-Based Model to Enhance the Governance of Law over Data Protection Issues [abstract]
Abstract: A fundamental proposition in data protection arrangement holds that the security of the right to personal data and the enforcement of rights-requirements are essential for the ultimate inner peace of human beings. Among these arrangements, some are entirely private, such as technology-standards for data protection, and do not rely on the legal authority. Other rules and legal institutions, such as the European legal framework for data protection issues, are legislation-built to secure the right to privacy in Cyberspace and to enforce the law there too. Regulatory agencies, such as the National data protection authority, restrict private conduct that might adversely influence others, and courts resolve disputes.However, legal theory does not tell us which of these mechanisms of securing the right to informational privacy is the best, and in reality they are all far from perfect. Technology-based private standards, while working well in some environments and time-periods, often degenerate into technical violence. Traditionally, orthodox mechanisms over enforcement of law are considered optimal; although public regulation might be corrupted and ?captured? by the very enforcement mechanisms themselves, they are considered optimal to enable an ordinary data subject to seek justice against technically more powerful offenders who control private enforcement.Few researches have devoted attention to analyzing the strength of deterrence offered by data protection law and its enforcement. From the point of view of evaluating the effectiveness of laws, however, it is crucial to understand the facts that make laws function more or less effectively.In many countries, policy actors and researchers attribute poor governance over data protection to the legislation being soft, backward (from the perspective of technology), or both. Yet, it may be that the poor enforcement structure within which enforcers, either judges or regulators in data protection authority, work in is the dominant cause. The two may also interact: poor enforcement structures may cause the soft and the backward data protection law to fail in deterrence. Since both enforcement structures and legislation are endogenously determined, establishing causality is hard. By providing a clean theoretical method for identification, ABM based simulation experiments can help cut the Gordian knot and identify problems in enforcement, elucidate the causes of deterrence failures, and suggest potential solutions. These contributions of the ABM simulation experiments are the focus of this expected contribution. In the field of CAS, ABM simulation is gaining new momentum. ABM offers the possibility of simulating human actions on a micro-scale level in a way that blends in with the existing network of theoretical approaches in the social sciences. In our case, the enforcement dynamics and social interactions are analyzed with an ABM. The contribution will examine the applicability of techniques that simulate different groups of agents involved in data processing on a regional level. The contribution will present the particulars of an ABM for enforcing data protection law, based on the peer effects among agents. As the most concerned issue, we try to offer some principles based on agent-based modeling about marked differences among jurisdictions in the strength of deterrence of their data protection laws. We will describe how the ABM simulation experiments could inform our understanding of the current problems in data protection law and help identify potential data protection law?s reforms.One novelty is the combined analysis of the governed agents and demand agents, which allows for incorporating psychological findings with respect to the enforcement of law updating over a case-cycle. Another novelty concerns individual?s social behavior regarding an optimal provision of compliance with law.
Kunbei Zhang
22013 Decomposing Contractual Privacy [abstract]
Abstract: As a result of technological developments, many consumer contracts like banking, shopping and the use of telecommunications now involve the collection, processing and use of personal data. Storage and analysis of this data becomes ever easier and cheaper as result of ?Moore?s law?; databases have therefore evolved into ?big data?. In this context, consumers are now entering in ever more ?privacy contracts?: contracts where agreeing to the processing of personal data is required to use goods or services.From a fundamental rights standpoint alone, evaluating privacy effects for their compliance with the law is already a complex problem. For example, citizens? ?reasonable expectation of privacy?, as well as the ?necessary in a democratic society?-criterion are adjudicated on a case-by-case basis and these notions are constantly re-evaluated as a result of changing technology and social norms. But complexity increases even further as increasing numbers of consumers, controllers, data brokers and government agencies, as well as undisclosed algorithms play a part in the decision-making process. Most consumers cannot be bothered with privacy concerns and simply click ?I agree? just to not miss out on the latest novelty service. As an emergent phenomenon this gives data controllers almost unlimited license to use personal data as they see fit. Incentives to disclose or discover the effects of these contracts seem to be lacking or ineffective. Privacy contracts have therefore become both a modern risk (as described by Ulrich Beck) and a new area where Perrow?s ?normal accident theory? can unfold in the areas of individual privacy, marginalization and mass surveillance.Zhang and Schmidt have illustrated that the Personal Data Community is a Complex Adaptive System. Therefore, to find effective incentives for all members of the Personal Data Community, we propose an Agent-Based approach to facilitate the quest for effective models, incentives and criteria for safeguarding consumers? privacy interests when they enter into contracts.Based on a previously performed comparative analysis of decision making processes and human rights protection law, we suggest modeling the market, the lawmaking process and dispute resolution processes bottom up, at both the national and the EU levels. Input parameters for the agents will represent opportunities for participation, transparency and accountability. Goal of the simulation is to determine whether a limited number of criteria (legal constraints) can sufficiently help to unearth the essential properties of consumer privacy contracts in the complex adaptive system that is the EU personal data community.The goal of the presentation is to discuss the viability of this approach with the complex systems community. This serves to clarify whether the approach is likely to add value to the more traditional approach of legal standard setting.
Michiel Rohen
22014 Understanding cyber security as a complex adaptive system [abstract]
Abstract: Using the framework provided by Zhang & Schmidt for understanding data protection law's subject matter as a complex adaptive system (CAS), I map out the various units and interconnections of the cyber security field. My first proposition therefore is, that the subject matter of cyber security laws can be described as the cyber security community (CSC). This distinction between the CSC and the laws that govern it, like Zhang's and Schmidt's distinction between the Personal Data Community (PDC) and its control systems, should make it possible to visualise the interaction between the two and highlight the nonlinear nature of this interaction. It may be necessary to deviate from the provided scaffolding due to the more complex nature of the CSC compared to the PDC.Jurisdictional variations in the maturity of cyber security policy and the effect of transnational bodies, such as the EU or NATO, on the CSC, might warrant delimiting the study to a subset of jurisdictions. Simplification would, however, bring only a pyrrhic victory, as the international dimension of the CSC is ill-suited for compartmentalisation, notwithstanding substantial differences in e.g. transatlantic approaches to cyber security. Zhang and Schmidt concluded that a boundary and some internal coherence are prerequisites for the PDC to be considered as a CAS, and placed the boundary on the interest of using personal data. Same prerequisites apply for the CSC, and the results of this process are not obvious at this stage, as an interest-based boundary would not suffice for the ubiquitous cyber security, where even oblivious users affect it through their passivity. My second proposition is, that the CSC is inherently global and hence ill-suited for national or transnational jurisdictional demarcation, and a conceptual boundary should be drawn to make the CSC a whole.An interesting addition to considering the CSC as CAS may come from Balzaq's and Cavelty's application of actor-network theory (ANT) to cyber security. Kim and Kaplan suggest that ANT and CAS theory may be complementary in the field of information systems, providing a co-evolutionary picture of both states and transitions. For a legal perspective of complexity, the transition is as interesting as the state, as Zhang and Schmidt noted in their critique of positivist and realist perspectives of legal scholarship. My third proposition is, that a dialectic perspective of the CSC will provide more understanding of the dynamic that affects the CSC as a CAS.Challenges to conceptualising the CSC arise firstly from fluctuating consensus in defining cyber security; without a unified way of describing the subject matter of the CSC, any further analysis would rely on the author's selection of an approach to cyber security. The second challenge is the inclusion of the debate of the nature of cyber security policy. Cyber security is considered to be either securitized or in the process of de-securitization in its EU context, and discursive evidence suggests securitization in US context. Whether cyber security is viewed as securitized or politicized affects the way the CSC is formed and what weight is placed on different agents in the (sub)dots. However, it is not necessary to resolve the question of securitization before depicting the CSC as a CAS. The question may actually be answered more clearly after a model of the CSC as a CAS has been developed. Agents are weighted differently in the CSC, and inferences to the (de-)securitized nature of cyber security may be drawn on a jurisdictional basis even if the CSC itself is global. My fourth proposition is, that making the CSC visible will also make it easier to determine if cyber security is currently securitized in a specific jurisdiction.
Tuomas Tiihonen
22015 Session 4?: Law and Complex Systems Science ? Roundtable
22016 Legal Norms as Emergent Phenomena [abstract]
Abstract: This presentation builds a theory on the difference between legal texts and legal norms out of the complexity theory. There is a consensus in legal theory about the existence of a fundamental difference between text of positive law and legal norms. However, there is no consensus on the terms of this distinction. This presentation argues that law can be understood as a complex adaptive system and that texts and norms can not be merged because norms as meanings of texts are phenomena that emerge in the interpretation process. So the presentation understands legal norms as emergent phenomena and interpretations as self-organizing processes in complex systems, which are formed of texts, theories, interpreters, values, worldviews, cases and other. To achieve that, the presentation contains an study that explains what are emergences in complexity theory and how these patterns are related to the parts that form them.
André Folloni
22017 Law at the edge of chaos. A praise for a complexity-inspired approach to the legal universe [abstract]
Abstract: Complexity theory has triggered a deep change in the way we conceive and interpret the intricacy of the real world. Its holistic vision has not only shown how the behavior of complex systems can emerge from simple interactions between its components, but has also provided a unified theoretical framework that inspires today?s research in a variety of areas from physics to biology. In the last 20 years, the complexity paradigm has gradually impacted social sciences too. Together with other factors - the spread of information technologies, the rise of Big Data and the advances made in the investigation of cognitive and biological underpinnings of human behavior - complexity science has paved the way to a new generation of social scientists that not only reject the idea of a strict separation between social and natural phenomena, but are gradually opening to the empirical, experimental and computational approaches that typically characterize physical and natural sciences. An example of this is social simulation, a trans-disciplinary methodology that is suggesting new explanations of the bottom-up emergence of complex social dynamics. As witnessed by recent works in computational legal studies and empirical legal research, this trend is gradually involving the legal world suggesting new ways to look at law, a natural social phenomenon to be understood as such in all its factual (biological, cognitive, social) complexity. Thanks to the spread of innovative approaches and methodologies spanning from agent-based modeling to social network analysis, we are facing the possibility to imagine a new legal research paradigm overcoming the limits of a traditional scholarship that still limits its scope to the analysis of the formal expressions of law (written norms, case law, legal literature).Grounded in concrete research experiences, the proposed analysis is a praise for the cross-fertilization between complexity and legal science, a choice seen as an urgent need from both a scientific and applicative standpoint. On the one hand, it represents a precious chance for a deeper understanding of all the phenomena that populate the legal universe. On the other hand, it can significantly increase the capacity of the legal technology to deal with the challenges of a more and more global, interconnected and complex world.
Nicola Lettieri
22018 Can complexity theory help understanding tomorrow's e-justice? [abstract]
Abstract: This paper investigates the e-Justice design and implementation experience taking place at EU level for the provision of e-Justice cross border judicial services through the complex theory lenses. The main drive is to better understand the elusive features of this phenomenon, which is resulting very difficult to tackle (and to explain) through the traditional process modeling and normative driven approaches typically implemented in the field.The design and implementation of ICT (EU cross border) justice service provision systems has shown a plurality of complexity factors:1. It is multi-domain: technological, legal, organizational and political dimensions are intertwined and interdependent.2. Organizational, legal and technological components of such systems are not the result of a blueprint design but are assembled though a process of design, discovery and adaptation, building on an only partially, locally known and evolving installed base, showing elements of emergence, non-linearity, path dependence in the way the net of relations between components is established (and evolve) and the assemblage shapes.3. Borders of the systems are not clearly defined. Often the components (organizations, laws, technologies) of a system are large systems themselves, only marginally involved in the system being development/implemented/maintained (e.g. the Italian PCT is a service provider within the e-CODEX system but e-CODEX is just a very limited part of the PCT)4. Components have shown to follow independent not always convergent evolution paths? 5. The systems (and their components) are influenced developments and initiatives at EU level, but also on developments in the Member States (like changes in legislation with an impact on competences of legal authorities or legal professionals; or like changes in IT systems)6. Objectives of these systems and of its components evolve over time and results from multiple interactions of a plurality of actors (and components) distributed through several localized times/places/events.7. Decisions and assemblage may emerge and stable/performative configurations are achieved (only) on a temporary basis.8. Development and use reinforce stability9. Loosely coupling, standardization of interfaces and adaptation supports the stability of the system and reduce the impact of local disruptive events and drift dynamics.10. The stability of these systems is always dynamicA typical example of such systems is e-CODEX, a EU e-Justice system which is the result of a 66 months and ?25m EU co-funded project (initially 36 months and ?15m), creating an infrastructure to support the communication and the exchange of legal information in EU cross-border judicial procedures.Confronted with this plurality of factors, EU and MS are now facing the need to design very complex systems capable of black-boxing this complexity and that result in very simple and user-friendly (socio-techno-legal) tools (simple and user-friendly depends from the user competences, available tools and relation to the justice domain and service needs). An initiative in this direction is the API for Justice project coordinated by the Ministry of Security and Justice of the Netherlands and aiming at providing an effective digital access to the e-CODEX system with an interface for alternative entry points for cross border legal procedures (an alternative entry point could for example be a website to support consumers in dealing with a specific type of dispute).As previously mentioned, traditional development and implementation approaches in use in e-Justice domain have fared poorly when confronted with this challenge. It is the opinion of the authors that a complexity theory driven approach could help better understand the situation and manage it more effectively through initiatives such as the API project.
Marco Vellicogna, Ernst Steigenga
22019 Complexity Squared: An Outline of Challenges Inherent to the Application of Complexity to 'Law' [abstract]
Abstract: The task of combining complexity and law is still in a nascent stage of its development. I argue that there are two reasons for why Complexity has not (yet) been fully embraced by the legal academy. Firstly, because as a?systems? concept, it must compete for attention and recognition in a space that is both dominated by Luhmannian autopoiesis, but that is also suspicious of claims that resemble out-dated comparative law discussions of national ?legal systems?. Secondly, it is not immediately clear how or to what ends complexity could apply to law because complexity itself is such a diverse field, but also because there is no consensus on what ?law? is. Like a swiss army knife, complexity is an analytical tool with a variety of applications for a broad array of disciplines. Although, one the one hand, this offers a large variety of options for how one might apply complexity to law, on the other, that variety multiplies to an dizzying abundance of potential when combined with the equally large variety of ways in which law itself is and has been conceptualized. However, with no established consensus on either complexity or ?law?, this abundance, while exciting, can also be daunting for its lack of established pathways for scholars to take. Law?s empirical components have obvious cross-over applicability that might make the application of complexity relatively straightforward for social scientists or others, but law?s normative elements cannot be ignored, even if their relationship to complexity is less straightforward. Considering law?s normativity from a complexity perspective poses entirely new questions, such as the complexity of norms and rule systems within human society, for instance, for which neither lawyers nor social scientists have easy answers. Combining normativity and empirics leads one to an even higher state of complexity for the study of complexity in law. To address this, I propose that the application of complexity to the study of law requires a researcher to select one of (at least) three fundamentally different perspectives representing significant conceptual cleavages in legal scholarship: a) law an observable ?thing? in the world; b) law as norms; and c) law as an instrument. From that choice, options for how and in what way complexity might be applicable will flow, although none will be determinative. Even within each of the three there is great variability. Law as a ?thing? can refer to legal positivism and the study of the architecture or legislative hierarchy, or it can refer to empirical practices or processes of conflict resolution or judgment, or it can ask questions about law as a social phenomenon, either as an assemblage of practices, processes, relationships, and/or behaviours. All of those require quite different considerations for how one might design a complexity based research project. Similarly, thinking of law in terms of a variable and changing complex ordering of norms and values requires different conceputalizations of complexity, most likely, but not always, rooted in highly contentious beliefs in the role, location, and significance of norms and values in human, political, modern, and inter- or transnational societies. Finally, seeing law as an instrument of social, political, or other engineering, might draw on entirely different applications of complexity, themselves differentiated between those that might see law as something that tries to regulate, control or direct complex phenomena, such as society, and those that might see law as a complex instrument in and of itself. This paper will tease out these distinctions with the underlying proposal that combining complexity and law is an intellectual travail that is long overdue, but one that is fraught with conceptual challenges, which might explain its relative tardiness.
Michael Leach
22020 Bio-Knowledge Governance in Complex Intellectual Property and Innovation Systems: New Approaches to Design Law and Policy to Promote Access to Knowledge and Innovation [abstract]
Abstract: Biotechnology research and development(R&D) lies at the center of health-related innovation and has redefined expectations and solutions to health problems around the world. Meanwhile, theories relating to intellectual property rights (IPRs) struggle to suggest how best to shape the legal system to maximize innovation and access to knowledge, especially in developing countries. The legal regulation of knowledge by intellectual property (IP) and innovation systems has become more complex, field specific, and fragmented into different regimes (IPRs specific legislation, innovation law, and biodiversity law, for instance) and levels of legislation (international, national, regional, federal, provincial, municipal, and institutional). The fragmented organization of IPRs, their regime complexity, and the diversity of relationships, expectations, and strategies of different agents compounding these systems are some of the aspects that characterize knowledge regulation in biotechnology R&D as a complex issue. Aggravating this complexity are the insufficient empirical evidence about the results of IPRs protection in health-related biotechnology R&D and the lack of a technology-specific approach in legal regulation.? This presentation explores how complexity science, especially complex adaptive systems (CAS) theory, can inform law and policy and guide the way in which developing countries legislate, develop policy, and negotiate internationally. The main goal is to better understand the regulation and governance of health-related biotechnology R&D by IP and innovation systems and design these systems to guarantee access to knowledge and innovation in developing countries. IP and innovation systems are built upon the understanding, expectations, and strategies of different agents compounding them. However, agents have limited understanding and are unable to predict every outcome occurring within these systems. This research identifies two main environmental forces influencing the regulation and governance of IP and innovation systems: the dialogue between and translation of science into the law constructed through multidisciplinary and empirical research (herein called law-science nexus) and power and politics in international trade and relations, as well as power and politics articulations by different agents nationally at diverse levels of jurisdiction. This research explores the idea of strengthening the law-science nexus to minimize power and politics influences to design access to knowledge and innovation driven systems which are more resilient and dynamic. Additionally, to suggest changes in law and policy that are more likely to be adopted successfully in IP and innovation systems it is necessary to analyse the understanding, expectations, and strategies of different agents towards these systems, and the hierarchy, organization, and environmental influences on these systems. The main outcome of my research is to suggest a framework of thinking based on complexity science principles to guide the process by which developing countries negotiate internationally, legislate, and develop policy in health-biotechnology.?
Priscilla Maria Dias Guimaraes Cesar