Syllabus - Algorithmic Law and Governance

ALGORITHMIC LAW AND GOVERNANCE DDRO 25A21 0 CRN 57941 Spring term 2019-2020 Lecturer: Andrea Leiter - PostDoc Fellow, Free University Berlin DESCRIPTION Algorithmic technologies are everywhere to assist, guide, implement and govern human activities. In business, administrative, security, health, humanitarian, financial or commercial interactions, algorithmic devices allocate resources and knowledge using large amount of data, constructing behaviour and subjectivity in a singular manner. The relationship between law and code is often framed as: Is code law? This course investigates the way in which algorithmic devices govern in relation to law and normativity. It is premised on the idea that code and law have to be understood as a hybrid form of governance. The course is developed for students of different disciplinary backgrounds and serves as an introduction to both law and digital technologies from a legal perspective. It is guided by questions such as: What is the relationship between humans and machines with regard to law? What are the specificities of the type of governance performed by algorithmic technologies? What kind of political, scientific, legal and engineering expertise are deployed in algorithmic governance? The course builds on case-based investigations across fundamental legal domains, and theoretical reflections on the themes and modalities of algorithmic law and governance. It draws on interdisciplinary readings from law and governance, data science, ethics, legal theory, philosophy and science and technology studies. 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr ORGANISATION Schedule The course will be held weekly on Fridays from 12.30-14.30 in the weeks from 31.01.202024.04.2020. There will be two exceptions in the schedule. There is no class on 21.02.2020 due to the University vacations. Furthermore, we will merge two classes for one of the sessions and therefore skip another week. We will discuss this in the first class. Structure The course is divided into 12 sessions and will explore the theoretical and practical stakes of the transformation of law and regulation when embedded with digital technologies. The first sessions of the course set up the overall framework for investigating digital technologies and law, the relationship of humans and machines, and the idea of private ordering especially as enabled through blockchain technology. The class then moves to examine different fundamental elements of legal orders, such as jurisdiction, territoriality, contracts and dispute resolution and their relationship to complementary and competing normativities of code and law. Taken together, these elements should create an understanding of the relationship of code and law that enables you to form a position towards the question ‘Is code law?’ Finally, the class will develop a language of critique that is embedded in the critical legal tradition. Skills The course aims at providing you with tools for critical analysis of legal devices, discourses and reasoning. It requires personal reflection and creativity. By the end of the course you should be able to critically analyse a legal argument or institution by reference to its political economy, historical context and contingency. One of the main goals of this course is to learn how to read text in a critical way. Readings will be assigned each week and will be available in the Google Drive folder of our course. Readings are generally scholarly articles or book excerpts, accompanied by magazine and newspaper articles, videos, podcasts and websites. Readings are divided in three categories: necessary readings, case study and further readings. You are expected to read the necessary readings and familiarise yourself with the case study each week. The noncompulsory readings are provided as a broader perspective for your own interest and curiosity. These readings are also a starting point for preparing the mind-map and the response papers (see below). The description for each session is intended to give you a preview of the problem in focus in the class. It should guide your reading and also be at the centre of your mind-mapping project. 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr You are expected to read the assigned documents, reflect on them and come to class with questions and ideas inspired by the readings. I offer guidance and advice to assist you with the assigned materials. However, I generally avoid giving questions in advance in order for you to build your own thoughts. We do not react to the same things, and even less so in the same way. If you do not know what to do with the readings, you can start by asking yourself the following questions: • Who is writing? When? Why? How? • What is this paper trying to achieve? • What kind of change is it trying to bring? • What are the types of legal style, reasoning type used in the paper? What are the definitions, distinctions, categories, modes of reasoning on which the authors rely on? • What type of arguments is the paper trying to refute, contradict or respond to? • What kind of conceptions of algorithms/code/law does it propose? In addition to the weekly readings, you are expected to read one book on your own. You will be able to choose a book from the list below, or suggest one to me in the first class and I will consider its suitability. For the review, you will work together in pairs of two until the end of the semester (see assessment below). Please note that the class does not follow a textbook, but you might want to refer to the following work for general reference: Brownsword, Roger et al (eds), The Oxford Handbook of Law, Regulation and Technology (Oxford University Press, 2016) 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr ASSESSMENT The final grade for the seminar will consist of four components, based on both oral and written, as well as individual and collective contributions. The general criteria for assessment are your preparedness, your ability to reflect critically on complex issues and your thorough understanding of the interconnection of historical and legal discourses. 1. Collective oral presentation on a mind-map: 10 minutes (25%) Groups of two or three students will prepare a mind-map on the subject assigned for the lecture and present it briefly to the class (approximately 10 min). The mind-map is a onepage graphical representation of the conceptual debate at stake. The map should be posted on the day before the respective class (latest Thursday evening) on our Google Drive in order for the class to be able to review it and prepare questions and reactions. The class can propose to add or complement the mind-map with additional ideas. The map should identify the core aspects of the theme. The assigned case study is supposed to help you develop the broader framework, but you should not exclusively focus on describing it. Much rather, you should use it as case in point for the broader problematique. 2. Individual response paper (on the readings): 800 words (25%) In connection with the mind mapping exercise you will be asked to submit response papers based on the readings. The response paper must be short and critical and approximately 800 words long (+/-10%). Rather analytical then descriptive, it aims at formulating an individual point of view on the subject at hand. You will choose the session for which you will be handing out the response paper during the first class. A good response papers aims at: • Identifying central questions/problems in the assigned text. • Understanding the historical, political, sociological context of the debate. • Choosing an angle of questioning the debate and taking an (internal or external) position on it. This is best achieved if you pay attention to your reactions when you read the papers. • Identifying the relevant authors and actors participating in the controversy, paying attention to their disciplinary background and how their writing relates or differs from other writings we have encountered in class. • Understanding and synthesizing their main arguments/counterarguments. • Identifying styles of intervention in the debate. 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr • • Connecting the controversy and the arguments it deploys with other texts, styles and argumentative moves we encountered in class. Identifying repeating arguments and types of claims in different contexts. You should be ready to present the views formulated in your paper orally. In addition to the assigned readings you are expect you to do your own research on the topic. The readings in the syllabus should constitute the starting point of your reflection. The papers will be due in the corresponding week electronically via email. 3. Book review (25%) and presentation (5%) Groups of two students will be assigned a book in the second session. You will be asked to write a 2500-words (+/-10%) review of the book. The review will analyze the book’s place in scholarship, as well as its strengths and weaknesses. It will evaluate it based on its content and style. Each pair of students will read the book, reflect on it, discuss it, and write the review together. I will propose examples of scholarly book reviews for information and inspiration. In the last session of the semester, you will give an oral presentation of your book review. You will also offer the class your opinion as to why this book should be read (or not), and other general conclusions. We will then have a concluding discussion on the course as a whole. The review is due on 1 June 2020 electronically via email. 4. Oral participation (20%) The class depends on your collaboration, so that part of your grade will be based on your participation in class. Please, prepare for each session based on the reading assignments. The grade will assess your ability to think and reflect critically and to elaborate and articulate your understanding of the readings and issues we discussed. In mid-semester, you can ask me for a provisional evaluation of your participation in class so that you can adjust your level of involvement. 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr OUTLINE Session 1 Introduction The first session is dedicated to an introduction to the content, aims and structures of the class giving an overview of the semester. We will discuss the assessment criteria and modalities as well as other administrative issues. This session will also serve as an opportunity to get to know each other, your backgrounds and your knowledge or interest in the course topic. readings: Watch these two short videos for inspiration: Ross, your brand you AI lawyer https://www.youtube.com/watch?v=ZF0J_Q0AK0E&feature=youtu.be Interview with Mireille Hildebrandt at cross talks VUB 2019 http://crosstalks.vub.ac.be/question-of-the-year/mireille-hildebrandt Session 2 Starting points: Law & Society – Algorithms This session is dedicated to an introduction to the relationship of law and society. It will introduce you to a reflective notion of law. We will discuss basic legal institutions, the idea of the separation of powers and the role of the state in modern legal systems. In addition, we will go through a basic introduction to algorithms and algorithmic ‘thinking’. You are encouraged to revisit the material for this session throughout the rest of the class as basic points of reference. readings: Cotterrell, Roger, Law's Community: Legal Theory in Sociological Perspective (Clarendon, 1995) part 1 ‘Explaining Law’s Power’ p.1-7 and part 11 ‘Law’s Image of Society’ p. 221-248 Cormen, Thomas H. et al, Introduction to Algorithms (MIT Press, 2009), chapter 1.1 ‘The Role of Algorithms in Computing’ p. 5-16 further readings: Surden, Harry, 'Machine Learning and Law' (2014) 89(1) Washington Law Review 87-115 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr Gillespie, Tarleton, 'The Relevance of Algorithms' in Gillespie, Tarleton et al (eds), Media Technologies: Essays on Communication, Materiality, and Society (MIT Press, 2014) 167-94 Harris, Phil, An Introduction to Law (Cambridge University Press, 7 ed, 2006), chapter 4 ‘Some important legal concepts’ Cormen, Thomas H. et al, Introduction to Algorithms (MIT Press, 2009) Session 3 Digital Technology and Law This class aims at developing your understanding of the relationship between technology, politics and law, particularly by challenging the often-assumed neutrality of technology. It furthermore intends to raise your awareness towards the cultural and historical embeddedness of law and technology discourses. readings: Tranter, Kieran, 'The Laws of Technology and the Technology of Law' (2011) 20(4) Griffith Law Review 753-62, read 753-756 Jasanoff, Sheila, 'Technology as a Site and Object of Politics' in Gooding, Robert and Charles Tilly (eds), The Oxford Handbook of Contextual Political Analysis (2006) 745-765 case study: Self-driving cars Levian, Sam and Julia Carrie Wong, 'Self-driving Uber Kills Arizona Woman in First Fatal Crash Involving Pedestrian', The Guardian (online, 19 March 2019) Randazzo, Ryan, 'Who Was Really at Fault in Fatal Uber Crash? Here's the Whole story', AZcentral (online, 18 March 2019) further readings: Brownsword, Roger et al, 'Law, Regulation, and Technology: The Field, Frame, and Focal Questions' in Brownsword, Roger et al (eds), The Oxford Handbook of Law, Regulation and Technology (Oxford University Press, 2016) Hildebrandt, Mireille, 'Prefatory Remarks on Part I: Law and Code', Human Law and Computer Law: Comparative Perspectives (Springer, 2013) 13-22 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr Jasanoff, Sheila, 'Making Order: Law and Science in Action' in Hackett, Edward J. et al (eds), The Handbook of Science and Technology Studies (MIT Press, 2007) 761-86 Greinke, Andrew, 'Legal Expert Systems: A Humanistic Critique of Mechanical Legal Inference' (1992) 1(4) Murdoch University Electronic Journal of Law Session 4 Humans and Machines The relationship of humans and machines is transforming and thereby challenging our legal conceptions. This class introduces the notions of code and law from the angle of agency. readings: Grimmelmann, James, 'There's No Such Thing as a Computer-Authored Work - And It's a Good Thing, Too' (2015) (Issue 3) Columbia Journal of Law & the Arts 403 Hildebrandt, Mireille, 'Learning as a Machine: Crossovers between Humans and Machines' (2017) 4(1) Journal of Learning Analytics 6-23, read 6-15 case study: Nature 2.0/Sovereign Nature Website and video presentation: http://sovereignnature.com/ McConaghy, Trent et al, 'Nature 2.0 - The Cradle of Civilization Gets an Upgrade' (2019) Medium Thompson, Clive, 'Nature Deserves Legal Rights—and the Power to Fight Back' Wired further readings: Pagallo, Ugo, 'What Robots Want: Autonomous Machines, Codes and New Frontiers of Legal Responsibility' in Hildebrandt, Mireille and Jeanne Gaakeer (eds), Human Law and Computer Law: Comparative Perspectives (Springer, 2013) 47-65 Session 6 Decentralised Governance and the State This session focuses on the relationship between law and the state. We will focus on the concept of territoriality for law making and law enforcement by the nation state and how it shifts in the age of data. Against this background we consider technologies of decentralised governance, especially blockchain, and their relationship to the state. readings: 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr Johns, Fleur, 'Data Territories: Changing Architectures of Association in International Law' (2016 published 2017)) Netherlands Yearbook of International Law 107-129 Barlow, John Perry, 'A Declaration of the Independence of Cyberspace' Electronic Frontier Foundation, 8 February 1996) Atzori, Marcella, 'Blockchain Technology and Decentralized Governance: Is the State still Necessary?' (2015) Available at SSRN 2709713 Yeung, Karen, '‘Hypernudge’: Big Data as a Mode of Regulation by Design' (2017) 20(1) Information, Communication & Society 118-36 case study: Liberland Website: https://liberland.org/en/ Interview with President Vit Jedlicka: https://podcast.bitcoin.com/e762-President-VitJedlicka-From-Communism-to-Free-Markets-Liberland further readings: Hildebrandt, Mireille, 'The Virtuality of Territorial Borders' (2017) 13 Utrecht Law Review 13 Reijers, Wessel et al, 'Governance in Blockchain Technologies & Social Contract Theories' (2016) 1 Ledger 134-51 Davidson, Sinclair et al, 'Economics of Blockchain' (2016) Available at SSRN 2744751 Session 6 & 7 Blockchains and Decentralised Autonomous Organisations (DAOs) This double session is supposed to give you the opportunity to apply what you have learned so far in a practical exercise. Based on a short introduction to blockchain technology, you will work in groups towards designing a governance framework for the Ethereum Blockchain in consideration of the ‘DAO’ Hack. The assignment will start from a diagnostic of the situation and move to the proposition of solutions. The goal of the exercise is to understand the interconnectedness of technology and law in governance. readings: Nakamoto, Satoshi, 'Bitcoin: A Peer-to-Peer Electronic Cash System' (Whitepaper, bitcoin.org, 31 October 2008) 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr Werbach, Kevin, 'Bitcoin Dreams' (2019) (20 August 2019) L.A. Review of Books case study: The DAO Smartz, 'What is a DAO and How it Works' Medium Finley, Klint, 'A $50 Million Hack Just Showed That the DAO Was All Too Human' Wired DuPont, Quinn, 'Experiments in Algorithmic Governance - A History and Ethnography of “The DAO,” a Failed Decentralized Autonomous Organization' in CampbellVerduyn, Malcolm (ed), Bitcoin and Beyond: Cryptocurrencies, Blockchains, and Global Governance (Routledge, 2017) 157-77, read 157-66 further readings: Urlichs, Anaïs, 'Understanding Blockchain Technologies — A Comprehensive Guide' Medium Diedrich, Henning, Ethereum: Blockchains, Digital Assets, Smart Contracts, Decentralized Autonomous Organizations (Wildfire Publishing, 2016) De Filippi, Primavera and Aaron Wright, Blockchain and the Law: the Rule of Code (Harvard University Press, 2018) Corradi, Fiammetta and Philipp Höfner, 'The Disenchantment of Bitcoin: Unveiling the Myth of a Digital Currency' (2018) (1) International Review of Sociology 193 Session 8 Contracts & Private Ordering This session picks up the thread of decentralised governance by introducing the idea of private ordering. We will look at elements that are constitutive for a legal order developed by non-state actors. The first element we will discuss are contracts. These can at once be viewed as technology, while at the same time, technology such as ‘smart-contracts’ are viewed as law. readings: Goldenfein, Jake and Andrea Leiter, 'Legal Engineering on the Blockchain: ‘Smart Contracts’ as Legal Conduct' (2018) 29(2) Law and Critique 141-9 Werbach, Kevin and Nicolas Cornell, 'Contracts Ex Machina' (2017) 67 Duke Law Journal 313, read 313-362 case study: Beenest 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr Schiller, Ben, 'On This Blockchain-Based Version of Airbnb, There’s No Middleman' Fast Company Video - Incubed sharing box - Slock.it: https://www.youtube.com/watch?time_continue=73&v=hiJ2FTLswWs&feature=emb_logo Dale, Brady, '‘Decentralized Airbnb’ Starts Charging Fees as ICO Model Falters' Coindesk further readings: on contracts : Davis, Kevin E, 'Contracts as Technology' (2013) 88 NYUL Rev. 83 Bix, Brian, Contract Law: Rules, Theory, and Context (Cambridge University Press, 2012) on private ordering: Merry, Sally Engle et al, 'Introduction: The Local-Global Life of Indicators: Law, Power, and Resistance' in Merry, Sally Engle et al (eds), The Quiet Power of Indicators: Measuring Governance, Corruption, and the Rule of Law (Cambridge University Press, 2015) p. 1-6 and 17-22 Dezalay, Yves and Bryant G Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1998) Session 9 Dispute Resolution This session develops a second important mechanisms of decentralised governance, namely dispute resolution. We will draw on the prior sessions to understand the relationship between the national court system and alternative mechanisms of dispute resolution, such as arbitration and mediation. Against this background, we will consider the implications of crowd-sourced arbitration mechanisms. readings: Delgado, Richard, 'Alternative Dispute Resolution: A Critical Reconsideration' (2017) 70(3) SMU Law Review 595-608 Koulu, Riikka, 'Blockchains and Online Dispute Resolution: Smart Contracts as an Alternative to Enforcement' (2016) 13 SCRIPTed 40 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr case study: Kleros Website: https://kleros.io/en/ Interview with Kleros CEO Frederico Ast: https://www.youtube.com/watch?v=b3azMH5p_74 Ast, Federico and Alejandro Sewrjugin, 'The Crowdjury, a Crowdsourced Justice System for the Collaboration Era' Medium Ast, Frederico et al, Kleros White Paper (September 2019) further readings: Harris, Phil, An Introduction to Law (Cambridge University Press, 7 ed, 2006), chapter 6 ‘Law and the Settlement of Disputes’ Session 10 Rule of Code This session will bring all pieces together and discuss what it means to speak of the rule of code. By now you will be able to grasp the relationship between the state, technology, different stakeholders, law and code and formulate your own thoughts on the question ‘Is code law?’ readings: Lessig, Lawrence, Code and Other Laws of Cyberspace (Basic Books, 2nd ed 2006), read p. 9-28 and 120-137 De Filippi, Primavera and Samer Hassan, 'Blockchain Technology as a Regulatory Technology: From Code is Law to Law is Code' (2016) 21(12) First Monday case study: Lexon Website: https://www.lexon.tech/ Interview with Lexon founder Henning Diedrich: https://cedricwaldburger.com/2018/06/27/lexon/ Diedrich, Henning, Lexon - Computational Law (2020 (forthcoming)) further readings: 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr Abramowicz, Michael B, 'Cryptocurrency-Based Law' (2016) 58(2) Arizona Law Review 360-420 Pasquale, Frank and Glyn Cashwell, 'Four Futures of Legal Automation' (2015) 63 UCLA Law Review Discourse 26-48 Session 11 Law and Algorithms – Angles of Critique A plea for code driven law is often linked to the hope of perfect formalism and exactness, which in turn is associated with fairness and justice. This session introduces the problem of indeterminacy in law and code, one of the strongest angles of critique rooted in the theoretical framework of critical legal studies. readings: Green, Ben and Salomé Viljoen, 'Algorithmic Realism: Expanding the Boundaries of Algorithmic Thought' Conference on Fairness, Accountability, and Transparency (FAT* 2020), 27-30 January 2020) Mireille, Hildebrandt, 'Law as Computation in the Era of Artificial Legal Intelligence: Speaking Law to the Power of Statistics' (Pt University of Toronto Press) (2018) 68(1) 12-35 further readings: Durante, Massimo, 'Law, Normativity, and the Writing: Oracle Night and Human Indeterminacy' in Hildebrandt, Mireille and Jeanne Gaakeer (eds), Human Law and Computer Law: Comparative Perspectives (Springer, 2013) 159-79 Kitchin, Rob, 'Thinking Critically About and Researching Algorithms' (2017) 20(1) Information, Communication & Society 14-29 Kennedy, Duncan, 'Structure of Blackstone Commentaries' (1979) 28(2) Buffalo Law Review 209-382 Session 12 Book Club In this last session, you will present your book review to the class and we will discuss the process of writing it. What went well? What did you struggle with? What do you take away from this task and the book you have read? In the last part of the session we will draw overall conclusions and I hope to get your feedback on the class. 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr suggested books for review: Benkler, Yochai, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press, 2006) Pasquale, Frank, Blackbox Society: The Secret Algorithms that Control Money and Information (Harvard University Press, 2016) Eubanks, Virginia, Automating inequality: How High-tech Tools Profile, Police, and Punish the Poor (St. Martin's Press, 2018) Gillespie, Tarleton, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions that Shape Social Media (Yale University Press, 2018) Werbach, Kevin, Blockchain and the New Architecture of Trust (MIT Press, 2018) Zuboff, Shoshanna, The Age of Surveillance Capitalism (Profilebooks, 2019) Pistor, Katharina, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press, 2019) Goldenfein, Jake, Monitoring Laws: Profiling and Identity in the World State (Cambridge University Press, 2019) Cohen, Julie E, Between Truth and Power: The Legal Constructions of Informational Capitalism (Oxford University Press, USA, 2019) Frey, Carl Benedikt, The Technology Trap: Capital, Labor, and Power in the age of Automation (Princeton University Press, 2019) 27, rue Saint-Guillaume 75007 Paris France T/ +33 (0)1 45 49 50 51 - F/ +33 (0)1 42 22 39 64 www.sciences-po.fr