Law and Information

I had the great pleasure to lecture at the 2nd Colloquium on Law of the Schweizerische Studienstiftung (Swiss Study Foundation), a foundation aimed at creating an interdisciplinary network among young high-potentials in Switzerland. Daniel Haeusermann had been on the planning committee of yesterday’s event, and so it might be less of a surprise that the Colloquium’s topic was “Law and Emotion”.

It was a lot of fun to present some of my theses on this multi-faceted topic. First of all, the Colloquium’s participants were very well prepared and made the discussion really interesting. Second, my Univ. of St. Gallen colleague Prof. Thomas Geiser did a great job in moderating the long day (room with no windows, wonderful sunshine outside…). Third, the Foundation invited a wonderful group of speakers, including Prof. Sandoz and retired Swiss Supreme Court Judge Franz Nyffeler. Last, but not least, it was the first time that I had the opportunity to speak at the same conference as my dad, Dr. Peter Gasser. He gave us a wonderful overview of the current state of the art of psychological and neuro-research on emotions.

I started my presentation with the thesis all speakers seemed to agree upon: Research (as well as life experience) suggests that emotions are constitutive and important elements of almost any phenomena with legal relevance. The emotional component is not limited to facts of the case before the court, but also includes decision-making processes by prosecutors, judges, legislators, etc. In some instances, the legal system is conscious about the emotional element – and in some instances it even explicitly addresses emotional phenomena, both with regard to norms applicable to the facts of a case (take, e.g., mitigating circumstances in criminal law; emotional injury in torts law) and the norms aimed at governing the legal decision-making process (e.g. the duty to recuse oneself in procedure law). In most cases, however, the legal system and its lawyers ignore the role of emotions and/or pretends to be “rational” (this perception of law might be particularly widespread among continental European lawyers).

Against this backdrop, I’m arguing that emotions – and research on emotions – play an important role at two levels, each level consisting of two elements: the analytical level with the elements “phenomenon” (stipulated facts, Sachverhalt) and “legal actors” (judges, attorneys, juries, etc.), and the design level with the components “norms applicable to the facts of the case,” and “norms governing the production of law” (e.g. procedure law). Here’s a rough sketch of the proposed framework:

• Analytical level:
• Phenomenon: Using the example of P2P filesharing, I tried to illustrate how a better understanding of the role of emotions (and that means: acknowledging emotions in the first place), makes us better observers and may lead to a deeper understanding of phenomena with legal relevance.
• Legal actors: Inclusion of insights from research on emotions may make us better legal professionals and thus improve the legal system. I used research on prosecutors’ strong feelings of loyalty as an example.

• Design level:
• Norms applicable to facts: New findings about emotions might force us to re-consider existing distinctions and think about new ones. I used the example of adjudicative competence (Dusky standard) as an illustration of this point (see this paper).
• Norms governing the production of law: New insights might lead to new mechanisms and fora that enable the system‘s actors to express, display, channel, balance, … emotional and rational elements of reasoning in a structured and discursive way. Consider, for example, procedural „speed bumps“ that would slow down legislation that is driven by fear – using the rapidly-enacted Patriot Act as a case in point.

In sum, law and emotion research and scholarship has an important agenda-setting function. The trickiest question, in my view, is as to what extent we (as a society) want to include insights from the sciences of mind. The heated debate about the existence of a free will – triggered by new neuro-biological and neuro-psychological findings – nicely illustrates this normative challenge before us.

My personal view is that we should include as much insights from science as we can as far as the analytical level is concerned. In contrast, I would be much more careful about applying insights from emotion research at the level of norm design. Although it is important to gain a better understanding of emotions at the design level, we would probably be ill-advised to incorporate latest insights from research on emotions without thoroughly discussing the normative implications of it on a case-by-case basis.

IP & Behavioral Science: The P2P-Example

So far, I’ve had an interesting week. It started on Tuesday in Munich where I attended an interesting workshop on Intellectual Property Law and Behavioral Sciences, organized by the Gruter Institute and the Max-Planck-Institute for Intellectual Property. Scholars from both sides of the Atlantic discussed the promises of a behavioral science approach to IP Law. I was talking about neuroscience and copyright law in the digital age, asking as to what extent neuroscience might be helpful to gain a better understanding of some of the most interesting copyright-related phenomena we’ve observed in cyberspace. Building upon earlier research conducted at the Berkman Center, I was focusing on the p2p file-sharing phenomenon. In the presentation, I tried to provide and map possible explanations of the file-sharing puzzle (why does it happen, why is it large-scale, why is it persistent?), using an extended version of Lessig’s four-mode-of-regulation framework by replacing Lessig’s “Dot” (i.e. the individual that is exposed to the four constraints on behavior) by a brain. My basic argument is that easy-to-use technology, market conditions, perceived illegitimacy of copyright norms and enforcement problems, and social norms overwriting legal norms (among other factors) are necessary, but not sufficient conditions to explain the emergence, scale and persistence of the p2p file-sharing phenomenon. Other factors have to be taken into account too, including social signaling, trust, and reciprocity (see Ernst Fehr’s research) – elements that are implemented on the platform level through Charismatic Code. The resulting practices of sharing might be bolstered by and corresponding with emotionally preferable states of mind. Since negative emotions are associated with free riding (defection triggers anger in others; defectors expect others to be angry with them), they might provide incentive to share despite lack of direct punishment on P2P networks. Positive emotions, by contrast, might result from cooperation/sharing: fMRI scans show that mutual cooperation is associated with activation in brain areas that are linked with reward processing (cf. Rilling, Gutman et al.)
The p2p case, in my view, nicely illustrates the promise (as well as the problems!) of an interdisciplinary research approach to IP law and policy – beyond law and economics.

Records Management: Local Laws vs. Global Infrastructure and Policies

Yesterday, I went to New York City to attend a series of interesting meetings as part of a consulting job for a multinational Swiss company. Together with the Swiss project leader and U.S. colleagues, we continued a discussion on global records and information management strategies. Once again, I was particularly intrigued by the complexity and granularity of the interactions between legal and regulatory frameworks regarding information and records management on the one hand and IT infrastructure issues on the other hand – both with regard to the physical and logical layer. From an information law perspective, it’s particularly interesting to study how regulators and legislators have been influenced by particular cases (e.g. Enron) as well as technological developments (e.g. storage media and techniques). The legal and regulatory responses are far from coherent even within a jurisdiction (in the U.S., for instance, different approaches have been taken to paper records, electronic documents, and email retention) and vary (not surprisingly) significantly among jurisdictions. For a global company, this heterogeneity and, sometimes, inconsistency of rules and regulations presents a though challenge if the company seeks to develop a global information and records management system as well as globally applicable corporate policies (e.g. on email management and retention). The complexity of the task to design and implement such systems and policies further increases due to the fact that each approach has different ramifications in areas such as litigation (buzzword e-discovery) that have to be taken into account in an iterative decision making process.

Internet Governance: Mapping a Diverse Diversity Debate

Right now, I’m waiting in Zurich for a delayed flight to London, from where I will be traveling to Oxford in order to attend a workshop on Internet Governance hosted by the Oxford Internet Institute. The workshop seeks to clarify the issues that are addressed in the first Internet Governance Forum meeting that will take place in Athens later this year. I have drafted a position paper on the diversity issue. The paper maps the diverse diversity debate and summarizes some of the key challenges faced by the IGF. The conclusion of the short paper (I will post a full PDF version later on) reads as follows:

An initial analysis of the contributions to the first IGF meeting confirms the impression that the “diversity” debate includes a broad range of topics. This position paper has outlined the contours of a framework that might be helpful to map the various issues addressed in the respective contributions. The challenges faced by the IGF, however, go far beyond analysis and categorization. First, the many items on the diversity agenda have to be prioritized. Second, the IGF — like other policy-makers (or “-shapers”) in cyberspace — faces the challenge of synchronizing technological innovation and market development with regulatory evolution if it chooses to set diversity as an item on the regulators’ agenda. Third, the IGF needs to decide on the approaches, institutions, and structures that are apt to deal with the complex components (and the interactions among them) of a diverse information environment. In this context, the promise and limits of a laissez-faire approach to diversity need to be assessed as well. Fourth, the IGF faces the challenge of facilitating discourse among stakeholders from various cultural, societal, economic and legal backgrounds. A look at the history of (national) debates about diversity in electronic media in general and content diversity in particular suggests that these cultural differences will make any implementation efforts at the international level particularly tough.

Against this backdrop, the IGF would be well-advised to focus on specific and clearly defined issues (e.g., the IDN issue), while gaining a deeper understanding — and raising awareness — of the interplay among the many elements that are crucial for building and maintaining a diverse digitally networked information environment.

Tomorrow, finally, back to St. Gallen.