Law and Information

How cool is that: Lufthansa provides on its long-haul flights WiFi access. My friends told me about it, but today – heading back from Reno via Frisco and Munich to Zurich – it’s the first time that I experience it. It’s not cheap, but also not terribly expensive. I pay a USD 26.95 flat fee for the entire 11+ hours flight. Right now, we’re overflying Anaconda (USA), altitude 36000 feet. So, we’re getting yet another step closer to “always online”… (and Skype, too, works up here! I’m loving it.)

After an incredible 22 hours trip from St. Gallen to Squaw Valley I finally made it to the Gruter Institute’s 2006 conference on Law, Behavior & the Brain. A fantastic group of roughly 40 leading researchers, scholars, and practitioners working in different fields – including biology, behavioral economics, neuroscience, and law – has gathered up here to explore a series of fascinating questions at the intersection of law, behavioral biology, and neuroscience. Among the panel topics: Law & Biology: The State of Play; Behavioral Biology Today; Law & Emotion; Property, IP, and the Brain; Evolution vs. Intelligent Design; Biology and the Elements of Reconciliation: Vengeance and Forgiveness; Cutting Edge of Law and Science.

Thanks to Monika Gruter Cheney and Oliver Goodenough, I had the pleasure to talk to the audience about large-scale copyright infringements on the Internet on the one hand and about emotional legal design (if you’re not familiar with the law & emotion movement, find here a terrific overview) on the other hand. Here’s the rough summary of my presentation entitled “The Quest for Principles of Emotional Legal Design”:

I’m fascinated by principles as a source from which things proceed. As a legal scholar, I’m particularly interested in legal principles (e.g. principle of equality); however, since doing research on Cyberlaw, I’m more and more fascinated by the emergence and effects of a different kind of principles, that is, by design principles (such as the end-to-end principle), which guide the building of complex systems, including (at least potentially) the legal system. I will refer to this type of principles also as “constructive principles.” In this context, I’m increasingly interested in identifying and discussing both analytical and constructive principles that might be derived from various bodies of knowledge, including knowledge accumulated in the 10+ schools of thoughts starting with “law & …” – ranging from law & economics, law & literature, law & technology, … to law & emotion. So, the question I’d like to explore today is: What can we learn from the law & emotion discourse as far as either analytical and/or design principles are concerned?

Before we start exploring this issue, however, let me briefly address the question why, at all, it seems important to crystallize such principles. In essence, I would like to suggest that a “principled” approach to law and legal processes has a series of distinct advantages. I would like to mention only two:

• Analytical principles can help us to gain a deeper understanding of social processes that are of legal relevance. In other words, they help us to better understand social phenomena related to the law in action as well as the law in the books. As such, analytical principles might help us dealing with the relevant phenomena. In an epistemological sense, they assist us to construct the world – our shared worldviews – based on a common set of insights, beliefs, rationales, and the like.

• Design principles or constructive principles, in turn, set the social engineers’ default standards, thus enabling us to build complex, decentralized and multi-actor systems in a more or less coherent manner – far beyond ad-hoc and case-by-case design choices. Furthermore, such principles encourage us to disclose and discuss particular design choices that are in tension with the guiding principles.

In this light and turning back to the first question: What are tentative analytical principles that we may derive from the law & emotion discourse as it stands today? I would like to propose two principles.
• Principle of implication: Arguably, the law & emotion research informs us that emotions are constitutive and important elements of almost any processes with legal relevance, including decision-making processes in courts (judges, juries), agencies, law-making bodies, and so forth. Indeed, the legal system involves human beings, and for them it is impossible not to have emotions. To better understand law and legal processes therefore also means to know more about emotional phenomena.
• Principle of interdependence: Emotional and rational phenomena are interacting with each other – they are inseparable. The relationship (among other things) can be neutral, re-enforcing, or contradictory. In any event, human beings depend on both “modes” of information processing and on the interaction between them. The principle of interdependence also applies to situations (what in German is nicely called Lebenssachverhalte) that make their way into the legal system. From the legal system’s viewpoint, it is important to understand these interactions and differentiate between the two modes.

Let me now turn to the second aspect: the quest for design principles. Frankly, the task to identify constructive principles is a much more difficult one. A review – although incomplete – of the law & emotion literature doesn’t seem to suggest a well-defined, overarching consensus regarding the normative implications of the findings for the building of legal systems at large. In some instance, for instance, it is debated as to what extent emotions shall make their way into the legal system at all. In others it is disputed what types of emotions and emotional mechanisms shall be taken into account by the law. Despite these difficulties, let me suggest two potential design principles that might serve as the starting point for a discussion about the possibilities (promises) and limitations (challenges) of such principles.

• Principle of inclusion: According to this principle, the legal system should aim to understand and take into account emotions and emotional mechanisms as empirical phenomena in a systematic and deliberative manner. If the legal system decides to exclude (or reduce the effects of) certain types of emotions or emotional mechanisms, or to ignore emotional phenomena in the context of certain areas of law, procedures, or the like, these design choices and the underlying arguments should be made transparent and opened up for debate.
• Principle of integration: The legal system (based on the insights by law & emotion research) should provide and further develop appropriate mechanisms and adequate fora that enable the system’s actors (including the parties of a dispute, lawyers, witnesses, jurors, judges, etc.) to express, display, channel, synchronize, balance, or align to the extent possible and desirable both the emotional and rational elements of reasoning in a structured and discursive way.

The relevance of such principles – both at the analytical and constructive level – can be illustrated by the Muhammad Cartoon controversy. The Muhammad cartoons controversy began after publication of 12 editorial cartoons in a Danish newspaper, most of which pictured the Islamic prophet Muhammad, which the newspaper said it was doing as part of a debate regarding criticism of Islam and self-censorship in Denmark. Critics of the cartoons have described them as islamophobic and argue that they are blasphemous, while supporters claim that they illustrate an important issue in an age of Islamic extremist terrorism and their publication exercises the right of free speech.

Now, emotions rooted in religious beliefs are often protected by laws in European jurisdictions – including by provisions of criminal law. My colleague Daniel Haeusermann at the Univ. of St. Gallen discusses in a recent paper in great detail how the relevant provision of the Swiss Penal Code, among others, struggles to deal with an issue such as the Muhammad cartoon controversy. Haeusermann shows on the one hand that the legal system lacks a basic (analytical) understanding of the emotions and emotional mechanisms involved in this particular controversy. On the other hand, he suggests that the law could respond in a more sophisticated way by establishing discourse-oriented mechanisms and loosely mediated public fora outside the court system in order to enable the channeling of emotions among the parties involved.

In that sense, the cartoon controversy might serve as a case study to apply, test and further develop the design principles sketched in this presentation – both from an analytical and normative perspective.

After an intense and wonderful “Law & Economics of Cyberspace”-teaching experience with my friend and colleague John Palfrey, I started working today on my contribution to the upcoming Gruter Institute’s Squaw Valley Conference 2006 on Law, Behavior & the Brain, where I will be participating in a session on Law & Emotion. Here’s the abstract of my presentation, entitled “The Quest for Principles of Emotional Legal Design”:
The presentation is intended as a contribution to the emerging field of scholarship at the intersection of law and emotion. However, instead of providing findings of prior research or research in progress, I would like to present and discuss a few hypotheses—and even ask some questions—that mark the very beginning of one of the speaker’s research projects.
Two beliefs are the starting point for my inquiry. First, I argue that the law & emotion scholarship has made a strong case why, in fact, emotions are of relevance to the legal system. Second, I suggest that in-depth and cross-disciplinary research in the field of law & emotion will soon be complemented by a discussion about what we might call “emotional legal design”, i.e., a discourse about the design principles aimed at guiding the future development of a legal system that takes the findings of law & emotion research serious.
Against this backdrop, I will formulate a series of theses that address, inter alia, the following questions:

• What are “emotional legal design principles”, and how might they look like?
• What is the underlying rationale and justification of such principles?
• What goals can and should they achieve?
• How can “emotional legal design principles” be applied and concretized?

The presentation ends with an illustration of the (possible) ramifications of the suggested design principles by using the Mohammed cartoon controversy as an example.

Any inputs, thoughts, and comments much appreciated!

I just returned from 02138, where I attended a working conference on digital institutions sponsored by the Berkman Center and the Gruter Institute and chaired by my colleagues Oliver Goodenough and John Clippinger. During two (rather intense) workshop days, an impressive line-up of panelists and discussants representing various backgrounds and areas of research – ranging from neuroeconomics, biology to virtual world developers – shared their knowledge about “digital institutions” with each other.

I was asked to frame the theme of a panel with Colin Maclay, Mike Best, and Iqbal Quadir on the formation of institutions in developed and developing economies. I started with a series of questions to be discussed and issues to be considered. First, I offered some thoughts about terminology and key distinctions that I considered being helpful for the discourse. Second, I briefly touched upon core elements that are likely to have an impact on the formation of digital institutions, emphasizing the importance of pre-existing institutional arrangements

Here are my notes:

1) Introducing basic distinctions: What do we mean by the term “institution”?

• Reviewing the literature in fields of sociology, economics, and law, it’s far from clear what the term means and how it differs from related terms such as “organizations” or “firms”. Generally, definitions of institutions include at least two elements: (a) Institutions consist of a set of rules, plus (b) some sort enforcement regime.

• Within this broad definition, however, various types of institutions can be distinguished, for example:
• internal institutions = community enforcement of rules (e.g.: Wikipedia with neutrality of viewpoint rule; enforced through community/peers; P2P file-sharing with strong norms re: sharing [“charismatic code” – cf. Strahilevitz]).
• external institutions = government enforcement of rules (e.g.: Intellectual property rights)
• informal institutions = emerge without explicit agreements (e.g.: Blogger ethics, e.g. “Identify and link to sources whenever feasible.”)
• formal institutions = based on deliberative formation processes (e.g.: ICANN)

• Similarly, formation of institution varies:
• spontaneous emergence (e.g.: online discussion groups)
• authoritative formation (e.g.: Companies providing virtual world platforms are created by entrepreneurs (= authority))

• Why do we (or should we) care about definitions?
• Epistemological argument: The way we conceptualize “institutions” shapes the way we perceive (digital) institutions as subject of our research
• To define means to differentiate: In order to deepen our understanding of formation of institution, we need some degree of granularity. Different types of institutions, e.g., emerge and evolve in different ways
• Putting together various pieces of knowledge about formation of institutions from different areas of research in order to use it in context of digital institutions also requires a relatively fine-grained picture of the concept “institutions”.

• However, traditional distinctions may not be 100% feasible for the digitally networked environment. Example: Virtual Worlds (such as Second Life) are at the same time…
• …internal institutions (avatars create & enforce their own rules) and external institutions (e.g. Linden Lab using EULAs, IP law, etc.)
• …informal institutions (rules of behavior within the game emerge in part w/out explicit agreements) and formal institution (e.g. enactment of “in world laws/codes in deliberative processes)

• In fact, first research question as to what extent the distinctions of analog/offline world translate into digital/online world.
• Possible starting point: Institutional approach to “commons-based peer production” of content (social production beyond hierarchies and price signals; cf. Benkler)

• For this panel, we use a broad an open terminology; pragmatic approach. Digital institution here includes diverse online phenomena such as Wikipedia, Flickr, eBay, Second Life … but also offline institutions operating in digital environment (e.g. mobile phone networks)

2) Formation of digital institutions: What are important factors that shape the formation of digital institutions?

At least three interrelated and interacting, but analytically distinct elements:

1. Preexisting institutional arrangements, both “analog” and “digital”
2. Technology (availability, pricing, development, …); physical and logical layer
3. Content-related aspect (content “supply” and “demand”; content diversity, quality, etc., but also human factor: ability to process information, knowledge, and entertainment, incl. level of education, literacy, etc.)

Focus on (1) = importance of preexisting institutional arrangements

• Analog” institutions have huge impact on formation of digital institutions; analog and digital not clearly separable
• Example 1: Legal system: Consider what is required to establish a Virtual World such as Second Life? [(1) establishing Linden Research Inc.; (2) creating platform – requires everything from corporate law over contract to IPR]
• Example 2: Economic system: Consider the role of financial system, e.g. micro-credits in low-income countries; cf. Grameen village phones project

• “Digital” institutional arrangements, too, have impact on formation of new digital institutions
• Internet: Esp. digital institutions at logical layer of the Net for providing services at content layer (fundamental example: ICANN – domain name system)
• Offline, but digital: phone networks (incl. mobile) and other infrastructure as prerequisite for digital entrepreneurs (here, intersection with second element: technological development)

• These few remarks illustrate interdependency and complexity, both at theoretical and practical level. Now: digging deeper in a case-study mode (Iqbal, Mike, Colin) – as one way to deal with complexity.

So far my remarks. After sessions with formal presentations covering issues such as trust and reciprocity, social signaling, stabilizing cooperation, dispute resolution, institution formation, virtual economics, and authentication and several hours of brainstorming, we came up with some sort of loosely joined research agenda as well as two or three more specific project ideas. In my perception, the multi-layered discussions centered around three core questions or perspectives: (1) What have we learned and what can we learn from existing and evolving digital institutions? (2) How could we build or use digital institutions to address or solve specific problems? (3) How can we change the offline environment to support the formation of digital institutions? The two days have made clear that in each area we are only at the beginning of a long, but exciting and promising conversation.