Abstract
In an age of constant, complex and disruptive technological innovation, knowing what, when, and how to structure regulatory interventions has become much more difficult. Regulators can find themselves in a situation where they believe they must opt for either reckless action (regulation without sufficient facts) or paralysis (doing nothing). Inevitably in such a situation, caution tends to trump risk. But such caution merely functions to reinforce the status quo and the result is that new technologies may struggle to reach the market in a timely or efficient manner.
The solution? Law-making and regulatory design needs to become more proactive, dynamic and responsive. So how can regulators actually achieve these goals? What can they do to promote innovation and offer better opportunities to people wanting to build a new business around a disruptive technology or simply enjoy the benefits of a disruptive new technology as a consumer? The chapter focuses on three possible strategies for ‘regulation tomorrow’.
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Notes
- 1.
- 2.
Butenko and Larouche (2015), p. 72.
- 3.
See McGrath (2013).
- 4.
Allenby (2011), p. 3.
- 5.
Butenko and Larouche (2015), p. 66.
- 6.
See Mandel (2013), p. 45: “One obstacle to this goal is that new technologies are often met with highly polarized debates over how to manage their development, use and regulation. Prominent examples include nuclear energy and genetically modified foods.”
- 7.
Marchant and Wallach (2013), p. 136.
- 8.
See Van Rijmenam (2016), p. 1: “The self-driving car from Google already is a true data creator. With all the sensors to enable the car to drive without a driver, it generates nearly 1 Gigabyte every second. It uses all that data to know where to drive and how fast to drive. It can even detect a new cigarette butt thrown on the ground and it then knows that a person might appear all of a sudden from behind a corner or car. One Gigabyte per second, imagine the amount of data that will create every year: On average, Americans drive 600 h per year in their car. That equals 2,160,000 s or approximately 2 petabytes of data per car per year. With the number of cars worldwide to surpass one billion, it is almost unimaginable how much data will be created when Google’s self-driving car will become more common on the streets.”
- 9.
See Thierer and Hagemann (2015), p. 340: “Living in fear of hypothetical worst-case scenarios and basing policy on them will mean that the best-case scenarios associated with intelligent vehicles will never come about. Thus, patience and regulatory forbearance are generally the wise policy dispositions at this time, bearing in mind that the tort system will continue to evolve to address harms caused by intelligent-vehicle systems.” See, also, Walker Smith (2014), p. 1777.
- 10.
See Gurney (2015), p. 433: “In addition to physically interfering with an autonomous vehicle, people will be able to virtually interfere with the operation of an autonomous vehicle, also known as hacking.”
- 11.
See Alemanno et al. (2013), p. 287: “The concept of trust shapes not only the relationship between regulators and regulated, but also the very object (i.e. the ‘what’ question) of policies.”
- 12.
See Bennett Moses (2011), p. 768: “The urge for legal change in response to technological change has a greater sense of timing: laws regulating railroads are only needed after track is laid; uncertainties relating to the split of genetic and gestational motherhood need only be resolved in response to the availability of in vitro fertilization. There is no doubt that legal change may be demanded as a result of changes in our collective knowledge and beliefs, or social change more broadly, but differences in how such changes are timed and perceived (as well as limitations of space) explain why this article focuses only on part of the story (which is not to say that it might not, in some places, have a broader resonance.”
- 13.
See Black (2009), p. 1: “A rule, any rule, legal or non-legal, issued by a regulator or formed within a firm – has a number of different dimensions. These are first its substance: what it concerns. Second, its status: whether it is legally binding or not, and the sanction, if any, which attaches to its breach. Third, its character, whether it prohibits, permits, discourages or mandates certain behaviour. Fourth, its linguistic structure: whether the language which the rule uses is vague or precise, whether the rule is simple or complex in its requirements, whether its language is clear and easily understood, or opaque.”
- 14.
See Canon et al. (2009).
- 15.
See Mandel (2013), p. 62: “Given the uncertainty surrounding an emerging technology’s development and risks, there will be inherent limitations concerning how specific a framework can be developed at early stages.”
- 16.
See Kaal (2013), p. 799: “Anticipation of unknown future contingencies and the pre-emption of possible future crises do not play a significant role in the current regulatory framework or in the literature on financial regulation.”
- 17.
Schumpeter (1962), pp. 83–4.
- 18.
See Sachs (2011), p. 1298: “One defining feature of the Strong Precautionary Principle is that it places a governmental entity in a role as a risk gatekeeper. Implicit in the Principle is the idea that there must be a “decider” who will determine whether the proponent of the activity has met its burden of proof on safety. The preventive thrust of Strong Precaution further implies that this review of risks should occur before the activity commences or the potentially risky product reaches the market.”
- 19.
The term is used prominently, for instance, in an environmental context. For example, the United Nations Conference on Environment and Development, Rio de Janiero, Brazil, June 3–14, 1992, The Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (Jun. 13, 1992), reprinted in 31 I.L.M. 874, 879 (1992). See, generally, Sunstein (2005).
- 20.
See Allenby (2011) p. 10: “But it is not just that each NBRIC technology system is powerful; it is that they are combining in unexpected ways that are both beyond any single technological domain, and very potent.”); Popper (2003), p. 86: “We see a growing divergence between time cycles of government and those of technology development. Quite simply, this presents government operations with a Hobson’s choice: Either live within a shorter response time and run the concomitant risk of ill-considered actions (or inactions) or see government input become less relevant and assume reduced stature. .. The risk of insufficient access to information is large. This goes beyond the problem of gaining awareness of and collating relevant data series. A related and in many ways more problematic issue is that of managing and accounting for data and other knowledge resources. There is then, of course, the central task of analyzing and providing an interpretation of the data. These issues are already of concern and will increase in time.”
- 21.
See, generally, Coad (2008).
- 22.
See Axelrod and Phillips (2008), p. 210: “The company was profitable from the start but become even more so in 1908, when Ford introduced the Model T. Up to this point, all manufacturers, including Ford himself, had seen the automobile as a custom-made luxury item for the wealthy.”
- 23.
See Bratspies (2009), p. 576: “Beck explains that unceasing technological innovation significantly contributes to risk and uncertainty in modern industrial society by forcing a constant reassessment of the relationships between scientific knowledge, technology, and public policy. In particular, new technologies underscore a growing divergence between market incentives and social welfare. As a society, we often turn to regulation to bridge that gap. But, in contexts as diverse as the licensing of agricultural biotechnology, the approval of new drugs or oversight of new financial instruments, the same refrain plays over and over — regulators must make high-stakes regulatory choices that implicate poorly understood risks.”
- 24.
- 25.
See Komesar (1988), p. 657: “Minoritarian bias supposes an inordinate power of the few at the expense of the many. The power of these few stems from better access to the seats of power through personal influence, organization, information, or sophistication. In our society, influence can be gained by identifying important political figures and delivering what those political figures want. The terms of trade may be as crass as graft or as innocent as information.”). See, also, Fortin (2003), p. 582: “Agency capture has been described as the occasion when a regulated firm wins ‘the hearts and minds of the regulators’. Capture in this instance, however, is not an all-or-nothing phenomenon, but a matter of degrees. In the subtlest sense, capture exists any time an agency moves too far toward accommodating a single interest while moving away from its statutory mission.”
- 26.
See Coffee (2012), p. 1036: “The alternative view, here presented, agrees that crisis is a precipitant, allowing legislative inertia to be overcome. After a crisis, Congress tends to adopt proposals long-favored by the relevant administrative agency but frustrated by powerful lobbies. Only with a crisis can reformers—or “political entrepreneurs” in the political science vernacular—aggregate sufficient support to pass reform legislation. For example, in the years prior to the Enron and WorldCom crisis in 2001 and 2002, SEC Chairman Arthur Levitt sought to respond to a soaring number of financial statement restatements and campaigned to restrict auditor conflicts of interest. Levitt was rebuffed, however, by the industry. With the Enron and WorldCom insolvencies and the evidence of financial impropriety manifest to all, Levitt and others—most notably, Senator Paul Sarbanes—convinced Congress to replace auditor self-regulation with a new body: The Public Company Accounting Oversight Board.”
- 27.
- 28.
See Coldwell (2014).
- 29.
See Garber (2014): “The news was. .. not good, for San Francisco’s taxi industry, anyway. The precipitous rise of services like Uber (and its fellow shared-ride services, like Lyft and Sidecar) has meant—markets being what they are—a precipitous decline in taxi rides taken across the city. The SFMTA’s interim director Kate Toran reported to her board that the average trips per taxicab in the city had declined from 1424 a month in March 2012 to only 504 as of July 2014”. See, also, Rogers (2015), p. 85: “Uber is sparking two major transformations of the car-hire sector. First, it is eliminating various transaction costs that have plagued the sector, particularly search costs, thereby creating something akin to a free market for car-hire services. Second, it is encouraging vertical and horizontal integration of the sector, which is highly fragmented in many cities.”
- 30.
See Baker (2014): “Insofar as Airbnb is allowing people to evade taxes and regulations, the company is not a net plus to the economy and society – it is simply facilitating a bunch of rip-offs. Others in the economy will lose by bearing an additional tax burden or being forced to live next to an apartment unit with a never-ending parade of noisy visitors, just to cite two examples. The same story may apply with Uber. Uber is currently in disputes with regulators over whether its cars meet the safety and insurance requirements imposed on standard taxis. Also, many cities impose some restrictions on the number of cabs in the hopes of ensuring a minimum level of earnings for drivers, but if Uber and related services (like Lyft) flood the market, they could harm all drivers’ ability to earn even minimum wage.”
- 31.
See Rudowski (2016): “Germans love speed, but they don’t love recklessness: the reason one can drive fast on the autobahn is because one can be confident that other drivers will follow the rules of the road. American companies, by contrast, are accustomed to a culture built on rejecting rules and deregulation has been gospel to the American political and economic mainstream since the 80s. In European markets, succeeding within the rules is a badge of honor. Breaking the rules, even in pursuit of a seemingly worthy goal such as improving market efficiency or consumer choice, can be seen as offensive and not something to necessarily be applauded.”
- 32.
See Uber (2016): “Providing two-way ratings and feedback allow us to celebrate the riders and drivers who make Uber great. This system also lets us know if the quality of service provided is consistently below Uber’s standards.”
- 33.
See McGarity (2004), p. 325: “One of the most powerful and persuasive early critiques of the federal regulatory regime of the 1960s was that the agencies charged with protecting the public had become captured by the very industries that posed the threats that the agencies were created to address. Early regulatory reformers, ranging from Ralph Nader to George Stigler, observed that if an agency only hears from the regulatees, it will become sympathetic to the regulatee’s point of view and vulnerable to manipulation. Even an agency that is thoroughly dedicated to its statutory mission knows that, with the limited resources available, it “cannot go to the mat every time” it disagrees with the regulated industry. As a result, decision-making outcomes will tend to reflect the economic needs of the regulated industry rather than the broader and more diffuse public interest that the agency was created to protect.”
- 34.
See Marchant and Wallach (2013), p. 23: “The pacing problem facing the legal system has at least two dimensions. First, many existing legal frameworks are based on a static rather than dynamic view of society and technology. Second, legal institutions are slowing down with respect to their capacity to adjust to changing technologies.”; Bennet Moses (2011), p. 764: “The particular technologies said to outpace law are constantly varying. Currently, the focus is on nanotechnology, biotechnology, robotics, information and communications technologies, and applied cognitive science,’ some of which have spawned new legal specialties.”; Bennett Moses (2013), p. 7: “Like the ‘challenge of regulatory connection’, the ‘pacing problem’ is an attempt to understand the struggle to ‘keep up’ with technology. There is more than one way to describe the ‘pacing problem’. One can look at the types of legal and regulatory problems that arise as a result of technological change including the need to manage new negative impacts and risks, the need to manage uncertainty in the application of existing laws, the need to adapt regulatory regimes that may be over-inclusive or under-inclusive when applied in the new context and the need to manage obsolescence. Alternatively, Brownsword distinguishes between descriptive and normative disconnection, and between productive and unproductive disconnection. These line-up to some extent, although there are differences in emphasis. On a simplistic level, numerous scholars point to hare and tortoise metaphors to explain the difficulties faced by ‘law’ when interacting with ‘technology.’ On a deeper level, new technologies can force us to question our commitment to and interpretation of important concepts and values, such as democracy.”
- 35.
See Sunstein (2008): “The precautionary principle , for all its rhetorical appeal, is deeply incoherent. It is of course true that we should take precautions against some speculative dangers. But there are always risks on both sides of a decision; inaction can bring danger, but so can action. Precautions, in other words, themselves create risks—and hence the principle bans what it simultaneously requires.” See, also, Adler (2011): “An obvious question: why is it safer or more ‘precautionary’ to focus on the potential harms of new activities or technologies without reference to the activities or technologies they might displace? There is no a priori reason to assume that newer technologies or less-known risks are more dangerous than older technologies or familiar threats. In many cases, the exact opposite will be true. A new, targeted pesticide may pose fewer health and environmental risks than a pesticide developed 10, 20, or 30 years ago. Shifting the burden of proof, as the Wingspread Statement calls for, is not a “precautionary” policy so much as a reactionary one. This myopic focus on the threats posed by new activities or technologies can actually do more harm than good.”
- 36.
See Kakutani (2010): “As Mr. Manjoo observes in ‘True Enough: Learning to Live in a Post-Fact Society’, the way in which ‘information now moves through society—on currents of loosely linked online groups and niche media outlets, pushed along by experts and journalists of dubious character and bolstered by documents that are no longer considered proof of reality’—has fostered deception and propaganda and also created what he calls a ‘Rashomon world’ where ‘the very idea of objective reality is under attack.’ Politicians and voters on the right and left not only hold different opinions from one another, but often can’t even agree over a shared set of facts, as clashes over climate change, health care and the Iraq war attest.”
- 37.
See Davies (2016): “How can we still be speaking of “facts” when they no longer provide us with a reality that we all agree on? The problem is that the experts and agencies involved in producing facts have multiplied, and many are now for hire. If you really want to find an expert willing to endorse a fact, and have sufficient money or political clout behind you, you probably can. The combination of populist movements with social media is often held responsible for post-truth politics. Individuals have growing opportunities to shape their media consumption around their own opinions and prejudices, and populist leaders are ready to encourage them.”
- 38.
See Callon et al. (2009).
- 39.
See Davies (2016): “The problem is the oversupply of facts in the twenty-first century: There are too many sources, too many methods, with varying levels of credibility, depending on who funded a given study and how the eye-catching number was selected. Like statistics or other traditional facts, this data is quantitative in nature. What’s new is both its unprecedented volume (the “big” in big data) and also the fact that it is being constantly collected by default, rather than by deliberate expert design. Numbers are being generated much faster than we have any specific use for. But they can nevertheless be mined to get a sense of how people are behaving and what they are thinking.”
- 40.
See Seib (2016).
- 41.
See Davies (2016): “As politics becomes more adversarial and dominated by televisions performances, the status of facts in public debate rises too high. We place expectations on statistics and expert testimony that strains them to breaking point. Rather than sit coolly outside the fray of political argument, facts are now one of the main rhetorical weapons within it.”
- 42.
See Hayes (2016): “Interest in drones from the retail sector is growing rapidly as competitive pressures push retailers and distributors to develop new ways to make their supply chains more efficient, to automate warehouses, and to reduce delivery costs. Walmart, the nation’s largest retailer, recently announced plans to use drones for inventory management in its warehouses. Amazon, the nation’s largest internet retailer, is researching the use of drones to deliver packages to consumers. Global e-commerce giant Alibaba is testing delivery drones in China while DHL is already using drones to deliver packages in Germany.”
- 43.
See Kamar (2006), p. 1725: “This article documents and analyses a powerful form of regulatory competition—competition for investments that has been transforming national corporate laws in the European Union in recent years. Unlike the competition for incorporations that shapes Delaware corporate law, and by some accounts the corporate laws of other American states as well, competition for investments stems from firms’ inability to incorporate outside the jurisdiction in which they operate, and is designed to attract capital and direct investments in local businesses, rather than incorporations by foreign businesses. The high political payoffs that await successful participants in the competition for investments enable them to overcome opposition that could stop them if they competed for incorporations.”
- 44.
Kamar (2006), p. 1725.
- 45.
- 46.
Kaal and Vermeulen (2016), p. 7.
- 47.
Kaal and Vermeulen (2016), p. 7.
- 48.
Park and Vermeulen, p. 773.
- 49.
Park and Vermeulen, p. 773.
- 50.
See Kirchner et al. (2005).
- 51.
See Kirchner et al. (2005).
- 52.
See Callon (2009).
- 53.
- 54.
Black et al. (2007), p. 196.
- 55.
Financial Conduct Authority (2015), p. 1.
- 56.
See Financial Conduct Authority (2015).
- 57.
Financial Conduct Authority (2015), p. 3. The three key questions that were investigated by the FCA on the sandbox proposal concerned “regulatory barriers” (how and to what extent can they be lowered?), “safeguards” (what protector measures should be in place to ensure safety), and “legal framework” (what regulatory arrangement are mandated by EU law).
- 58.
See Tobey (2016): “Unauthorized firms will be given restricted authorization to test their products/strategies in a live environment without the concerns of costs and standard regulatory requirements.”
- 59.
Financial Conduct Authority (2015), p. 3.
- 60.
See Dwyer (2016).
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Fenwick, M., Kaal, W.A., Vermeulen, E.P.M. (2018). Regulation Tomorrow: Strategies for Regulating New Technologies. In: Kono, T., Hiscock, M., Reich, A. (eds) Transnational Commercial and Consumer Law. Perspectives in Law, Business and Innovation. Springer, Singapore. https://doi.org/10.1007/978-981-13-1080-5_6
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