Zoran Skoda Algorithmic regulation and personalized law

  • Christoph Busch, Implementing personalized law: personalized disclosures in consumer law and data privacy law, The University of Chicago Law Review 86:2, Symposium: Personalized Law (2019) 309-332

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.

(short) Table of contents, (from link, for full t.o.c. see pdf)

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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