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.

The OECD has just released what - in my view - is the first thorough high-level policy report on user-created content. (Disclosure: I had the pleasure to comment on draft versions of the report.) From the introduction:

The concept of the ‘participative web’ is based on an Internet increasingly influenced by intelligent web services that empower the user to contribute to developing, rating, collaborating on and distributing Internet content and customising Internet applications. As the Internet is more embedded in people’s lives ‘users’ draw on new Internet applications to express themselves through ‘user-created content’ (UCC).

This study describes the rapid growth of UCC, its increasing role in worldwide communication and draws out implications for policy. Questions addressed include: What is user-created content? What are its key drivers, its scope and different forms? What are new value chains and business models? What are the extent and form of social, cultural and economic opportunities and impacts? What are associated challenges? Is there a government role and what form could it take?

No doubt, the latest OECD digital content report (see also earlier work in this context and my comments here) by Sacha Wunsch-Vincent and Graham Vickery of the OECD’s Directorate for Science, Technology and Industry is a must-read that provides plenty of “food for thought” - and probably for controversy as well, as one might assume.

The University of St. Gallen has been the first Swiss university that has implemented the principles and standards set forth in the so-called Bologna Declaration aimed at harmonizing the European Higher Education System (more on the Bologna process here.) As a result, the St. Gallen law school offers two Master programs for J.D. students: Master of Arts in Legal Studies, and Master of Arts in Law and Economics.

Recently, I have been heavily involved in the law and economics program (I should mention that St. Gallen doesn’t follow the rather traditional approach to law and economics that is predominant among U.S. law schools. Click here for a brief description of the St. Gallen interpretation of law and economics). Today is a special day for the program’s faculty and staff, because the first generation of students enters the final 10th semester of the Bologna-compatible Master program. Arguably, this 10th semester is rather unique as far as structure and content is concerned. Instead of providing the usual selection of courses for graduate students, we have designed what we call an “integrating semester” in which all students are required to take three (but only three) full-semester courses aimed at “integrating” the knowledge, skills, and methods they have acquired over the past few years. All three seminars – together worth 30 credits – are designed and taught by an interdisciplinary group of faculty members from the University of St. Gallen and beyond, including legal scholars, economists, business school profs, technologists, etc. The first seminar, led by Professor Peter Nobel, Thomas Berndt, Miriam Meckel and Markus Ruffner, is entitled Law and Economics of Enterprises and deals with risk and risk management of multinational corporations. The second seminar, led by Professor Beat Schmid and me, concerns legal, economic, and business aspects of intellectual property rights in the digital age. Professors Hauser, Waldburger, and van Aaken, finally, are teaching the third seminar entitled Law and Economics of Globalization, addressing issues such as world market integration of low-income countries, foreign investments, global taxation, and regulation of multinational enterprises.

My seminar on law and economics of IPR in the digital age starts with a discussion of basic concepts of economic analysis of intellectual property law and a stock-taking of the main IPR-problems associated with the shift from an analog/offline to a digital/online environment. It then follows a module in which we will explore three key topics in greater detail: digital copyright, software and business methods patents, and trademarks/domain names. Towards the end of the semester, we will then try to tie all the elements together and develop a cross-sectional framework for economic analysis and assessment of IPR-related questions in the digitally networked environment. In this context, we will also be visiting the Swiss Federal Institute of Intellectual Property (in charge, among other things, with working on IP legislation in Switzerland), where we will discuss the promises and limits of economic analysis of IP law with the Institute’s senior legal advisor and the senior economic advisors.

Clearly, we have a very ambitious semester ahead. I’m particularly thrilled that a wonderful group of colleagues from Europe and abroad is helping me to do the heavy lifting (of course, my wonderful St. Gallen team is very involved, too, as usual.). My colleague and friend John Palfrey, Clinical Professor of Law at Harvard Law School, the Berkman Center’s executive director, and member of the board of our St. Gallen Research Center for Information Law, will be discussing with us thorny digital copyright issues and future scenarios of digital media. Klaus Schubert, partner of WilmerHale Berlin, will be guiding us through the software patents and business methods patents discussion. Last but not least, Professor Philippe Gillieron from the University of Lausanne will be speaking about trademark law in the digital age, focusing on domain name disputes.

All sessions are (hopefully) highly interactive. The students will contribute, among other things, with discussion papers, term papers, group presentations, and will participate in mock trials (one on Google’s recent copyright case in Europe), Oxford debates, and the like. Unfortunately, the Univ. of St. Gallen is still using a closed online teaching system called StudyNet, but if you’re interested in the Syllabus, check it out here. Comments, thoughts, suggestions, etc. most welcome!