AI Regulation in Europe

Abstract

With the regulation of Artificial Intelligence (AI), the European Commission is addressing one of the central issues of our time. However, a number of core legal questions are still unresolved. Against this background, the article in a first step lays regulatory foundations by examining the possible scope of a future AI regulation, and by discussing legal strategies for implementing a risk-based approach.

In this respect, I suggest an adaptation of the Lamfalussy procedure, known from capital markets law, which would combine horizontal and vertical elements of regulation at several levels. This should include, at Level 1, principles for AI development and application, as well as sector-specific regulation, safe harbors and guidelines at Levels 2-4. In this way, legal flexibility for covering novel technological developments can be effectively combined with a sufficient amount of legal certainty for companies and AI developers.

In a second step, the article implements this framework by addressing key specific issues of AI regulation at the EU level, such as: documentation and access requirements; a regulatory framework for training data; a revision of product liability and safety law; strengthened enforcement; and a right to a data-free option.

Citation
Hacker, Philipp, AI Regulation in Europe (May 7, 2020). 

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Taming COVID-19 by Regulation: An Opportunity for Self-Reflection

Abstract

The COVID-19 outbreak offers a rich case study of government’s emergency response. As such, it is a test bed for risk research and regulatory theories in a world increasingly shaped by transboundary, uncertain manufactured and natural risks.

This introductory essay to the special issue of the European Journal of Risk Regulation attempts at providing an initial analysis of the surprisingly uncoordinated, at times unscientific, response to an essentially foreseeable event like a novel coronavirus (nCoV) in a geopolitically shattered world.

It warns that COVID-19 may go down in history as yet another major disaster occurrence with no learnings attached. Yet, as new transboundary disasters – from bioterrorism to climate change – loom on the horizon, neither the world nor risk regulation, as a discipline and practice of government, can hardly afford to let another crisis go wasted.

Citation
Alemanno, Alberto, Taming COVID-19 by Regulation: An Opportunity for Self-Reflection (April 28, 2020). European Journal of Risk Regulation, Issue 2/2020.

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Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession

Abstract

The “appearance of impropriety” standard should be categorically applied to regulate all members of the legal profession. The standard is intended to prevent the public’s loss of confidence in the legal system by disciplining members of the profession who appear to act improperly even if they do not violate specific ethics rules.

When applying the standard, courts ask whether the conduct in question creates an appearance of impropriety “in the mind of an ordinary knowledgeable citizen acquainted with the facts.” However, critics argue that this vague test allows judges to levy disciplinary sanctions based on their idiosyncratic, empirically unfounded views of how ordinary citizens will react. As such, some jurisdictions only apply the standard on a selective basis for judges and government lawyers based on the assumption that their appearances of impropriety are more damaging to the public’s confidence in the legal system.

Using a series of survey experiments, this article offers the first empirical evidence that most, if not all, common ethical dilemmas that do not implicate specific ethics rules consistently undermine the public’s confidence in the legal system. These results suggest that the standard should regulate all members of the legal profession, even when they do not violate specific ethics rules.

Citation
Kim, Matthew, Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession (May 9, 2020).

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The Sandbox Paradox: Balancing the Need to Facilitate Innovation with the Risk of Regulatory Privilege

Abstract

In recent years, “regulatory sandboxes” have gained a great deal of attention from policymakers, regulators, and regulatory scholars. Regulatory sandboxes are closed testing environments in which specific firms are able to experiment with new and innovative business models or products with reduced regulatory burden or expedited regulatory decisions. Sandbox advocates support or defend regulatory sandboxes as a way to promote entrepreneurialism and innovation within the financial sector while still maintaining mechanisms for consumer protection and regulatory oversight. Opponents of sandboxes tend to focus on the potential risk to the consumers who use the services being tested in the sandbox. However, there is a third group affected by regulatory sandboxes: the competitors of firms in the sandbox. By definition, regulatory sandboxes grant certain advantages to specific firms without extending those same privileges to other firms. The goal of this paper is to examine the potential regulatory advantages sandboxes offer, consider the possible risks and costs associated with those advantages—including the potential to distort the market and incentivize cronyism—and propose best practices that policymakers could use to mitigate those costs.

Citation
Knight, Brian and Mitchell, Trace, The Sandbox Paradox: Balancing the Need to Facilitate Innovation with the Risk of Regulatory Privilege (March 26, 2020). South Carolina Law Review, Forthcoming; Mercatus Research Paper, 2020; C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 19-36.

Available from the SSRN site.

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Avatars, Acting and Imagination: Bringing New Techniques into the Legal Classroom

Abstract

This project is part of an ongoing effort to build the “360° lawyer,” a concept that I came up with to capture related strands of thought I have had while teaching students in my first-year legal writing classroom. “360°,” or “whole,” or “all the way around.” These felt like the right ways to describe someone who could see legal issues from multiple perspectives, but also had the quality to sustain oneself in the practice of law – the “w-holistic” lawyer.

The first endeavor was to think about ways that I could teach or inspire students at the particular moment in the spring semester where they had written their appellate briefs and were just about to present their oral arguments – in other words, in the liminal space between what students know and what they do not (yet) know.

Along with the traditional “moot-courtisms” and instructions, such as to make eye contact, and not to be rude or disrespectful to the judges or opposing counsel, I decided to try something new this year. I set aside one extra class period, after I had already taught my normal oral advocacy classes, in which I pulled together six tips to help my students navigate this space. I employed the help of one of my neighbors, a Shakespearean- trained actor who was currently, in her words, “playing a lawyer on t.v.” Together, she and I brought these tips to life for the students, and met them right in the space that they occupied that week. This article describes the concepts I created for that class, as well as other theater-based techniques that can be helpful for students to transition into oral advocates, and ultimately, into holistic lawyers.

In Part II of this article, I examine the scope of the existing legal academic research on theater techniques in the law, including those in the courtroom as well as the classroom. Although some of the pieces connect acting and lawyering, they leave room to explore the use of theater theory and application in the law classroom – including the legal writing classroom – in a deep and impactful way. Further, even though the literature on oral advocacy is richly developed, it also leaves openings to inspire students while teaching them to be advocates. I discuss why theater techniques can help students feel more prepared for the oral argument process, including addressing concerns about whether such techniques can bring through an authentic perspective.

In Part III, I describe the six techniques, some from my own experience, and others from formalized theater training, which I brought to my spring persuasive writing and oral advocacy course, and how we presented them to the students. The six tips are to: 1) find an “avatar,” which is the core concept of this paper, and one I developed to help students feel more steady when they first think about presenting themselves; 2) be prepared, which requires them to review the material facts and law just as an actor would review a script; 3) know the “heart” of the story, which is common in both a student’s theory of the case and an actor’s understanding of her character’s motivations; 4) think in a 360° way, in which I ask students to “recognize the round,” and think from the other side’s perspective, just as actors are taught to think about other character’s motivations; 5) understand the power of projection (the voice); and, finally, 6) understand the power of body language (the stance).

Finally, I conclude with my thoughts on the class and the process, and discuss ways in which these techniques – unbundled or bundled—might be useful in other law teaching moments.

Citation
Kanwar, Joy, Avatars, Acting and Imagination: Bringing New Techniques into the Legal Classroom (December 31, 2018). Journal of the Legal Profession, Vol. 43, No. 1, 2018.

Available from the SSRN site.

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The Global RegTech Industry Benchmark Report

Abstract

The first global benchmark study of the RegTech sector by the Cambridge Centre for Alternative Finance, conducted with the support of EY Japan, is based on a survey of 111 firms as well as regulators and industry experts. We estimate that the global RegTech industry generated $5 billion in revenue in 2018, and had raised $9.7 billion in external funding as of early 2019. The financial services sector dominates demand for RegTech services but most vendors now target non-financial sectors, and this share is set to grow.

The RegTech market can be broken down into five distinct segments: 1. Profiling and due diligence 2. Dynamic compliance 3. Reporting and dashboards 4. Risk analytics 5. Market monitoring.

The sector underwent a period of rapid growth between 2014 and 2018, but is now growing mostly through incumbent expansion rather than market entry. Long sales cycles, complex IT planning within client institutions, difficulties in establishing trust and high levels of competition have left some vendors struggling to gain traction. A handful of larger vendors thus dominate most funding and commercial activity.

Citation
Schizas, Emmanuel and McKain, Grigory and Zhang, Bryan Zheng and Garvey, Kieran and Ganbold, Altantsetseg and Hussain, Hatim and Kumar, Pankajesh and Huang, Eva and Wang, Shaoxin and Yerolemou, Nikos, The Global RegTech Industry Benchmark Report (June 30, 2019).

Available from the SSRN site.

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Nudge Regulation and Innovation Policy

Abstract

Whilst there is widespread agreement among decision makers that fostering innovation should be a priority, there is far less consensus on how to achieve this objective. Given the fact that the effects of new technologies are often unknown, in the early stages of technological development, there might be insufficient information for conducting a cost-benefit analysis. Under uncertainty, using strict regulatory measures might kill the innovation before the market matures, resulting in inefficiency. Moreover, strict regulation can infringe on entrepreneurs’ right to conduct a business. In addition, using strict regulation without fully understanding the technology and the harm it might cause consumers might not provide them with the needed protection. We argue that when regulating new technologies, the use of nudges is a desirable policy tool, superior to most other policy tools available to regulators. Nudging leaves room for technological developments while allowing the regulators to rely on the Wisdom of the Crowd to move regulation in the most efficient direction.

Citation
Cohen, Nissim and Jabotinsky, Hadar Yoana, Nudge Regulation and Innovation Policy (January 22, 2020).

Available from the SSRN site.

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Key Elements of Responsible Artificial Intelligence – Disruptive Technologies and Human Rights

Abstract

One major challenge facing human kind in the 21st century the widespread use of Artificial Intelligence (AI). Hardly a day passes without news about the disruptive force of AI – both good and bad. Some warn that AI could be the worst event in the history of our civilization. Others stress the chances of AI diagnosing, for instance, cancer, or supporting humans in the form of autonomous cars. However, because AI is so disruptive the call for its regulation is widespread, including the call by some actors for international treaties banning, for instance, so-called “killer robots”. Nevertheless, until now, there is no consensus how and to which extent we should regulate AI. This paper examines whether we can identify key elements of responsible AI, spells out what exists as part “top down” regulation, and how new guidelines, such as the 2019 OECD Recommendations on AI can be part of a solution to regulate AI systems. In the end, a solution is proposed that is coherent with international human rights to frame the challenges posed by AI that lie ahead of us without undermining science and innovation; reasons are given why and how a human rights based approach to responsible AI should inspire a new declaration at the international level.

Citation
Voeneky, Silja, Key Elements of Responsible Artificial Intelligence – Disruptive Technologies and Human Rights (January 1, 2020). Freiburger Informationspapiere, January 2020.

Available from the SSRN

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Current Day Realities of Legal Education in Nigeria: Challenges, Prospects and Productive Way Forward

Abstract

“We need to raise the standard of legal education in Nigeria. The standard is too poor and too weak, and we see it in the quality of lawyers that come to our chambers”.

The above were the words of the former chair of the NBA while describing the pitiable state of legal education in Nigeria which is clearly on its death throes. It is saddening that the framework for legal education in the country which has served the country for over five decades appears to be gasping for its last breath. The challenges bedeviling legal education in Nigeria, resulting in the low quality we now have, are multifarious. However, these challenges are not without practical solutions. Thus, against the foregoing backdrop, this paper examines the current day reality of the state of legal education in Nigeria; prospects, challenges and productive way forward for legal education in the country.

Citation
Disu, Damilare, Current Day Realities of Legal Education in Nigeria: Challenges, Prospects and Productive Way Forward (February 9, 2020).

Available from the SSRN

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New Zealand Lawyers, Pro Bono, and Access to Justice

Executive Summary 

This report summarises the results of a study about the provision of pro bono legal services in New Zealand. Pro bono legal services – free legal assistance provided by qualified lawyers – is often pointed to as an option for assisting more New Zealanders to access legal services. This is in recognition that a large portion of the population does not qualify for legal aid (particularly civil legal aid) and cannot afford to pay a lawyer. To increase the amount of pro bono legal services available, the New Zealand Law Society President recently suggested New Zealand lawyers should aspire to deliver 35 hours per year (the same aspirational target as Australia). Little is known about the amount of pro bono services being offered, who is receiving them, and lawyers attitudes to providing more pro bono. We, therefore, designed a study to provide more information about the pro bono landscape in New Zealand, to help inform policy discussions on this issue. The study was conducted in two phases from September 2018 to February 2019 as part of a wider project about free and low cost services offered by lawyers. The first phase was a survey of the profession, which 360 lawyers completed. The survey included questions about how lawyers define pro bono, how much pro bono work they perform and for which clients, and whether they regard providing pro bono legal services as a professional obligation. The second phase involved qualitative interviews with 23 lawyers to elicit more detailed information about attitudes to pro bono work and how pro bono service provision operates in Aotearoa.

The results of the study suggest there is little shared understanding of what constitutes pro bono legal services. This is a significant impediment to any discussion about pro bono legal services, the amount of provision, who is providing the services, and the design of policy to encourage the provision of more pro bono services. The study also identified a blurring between legal aid services and pro bono. The underfunding of legal aid has meant that lawyers either consider legal aid is a form of pro bono or lawyers are offering pro bono to supplement legal aid. This is problematic in that pro bono legal services – which should be directed at those who do not qualify for legal aid but cannot afford a private lawyer – are being offered to litigants who qualify for legal aid. The results also suggest that were the NZLS to implement an aspirational target of 35 hours per annum, most lawyers would fall short of this target. While 41 percent of lawyers are exceeding the target, more than a quarter are doing no pro bono work that enhances access to justice. The remaining quarter are doing some access to justice focused pro bono work, but less than the suggested aspirational target. Furthermore, pro bono services are not distributed fairly either within the profession as service providers, or across the public, as service recipients. The study makes ten recommendations focused on three key themes: (1) that the profession develops a shared definition of pro bono, focused on pro bono that enhances access to justice, and that this definition be the basis for all programmes, targets and incentives for carrying out pro bono; (2) that a national clearinghouse for pro bono be introduced to minimise the administrative burden on lawyers providing pro bono and more equitably distribute pro bono services among the public; (3) that the legal profession associations encourage an increase in the amount of pro bono service via a number of mechanisms including regulatory reform and the introduction of an aspirational target.

Citation

Kayla Stewart, Bridgette Toy-Cronin, Louisa Choe New Zealand lawyers, pro bono, and access to justice
(University of Otago Legal Issues Centre, March 2020).

Available here

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