The Death of Rules and Standards

58 Pages Posted: 22 Nov 2015 Last revised: 2 Aug 2016

Anthony J. Casey

University of Chicago Law School

Anthony Niblett

University of Toronto - Faculty of Law

Date Written: November 20, 2015

Abstract

Scholars have examined the lawmakers’ choice between rules and standards for decades. This paper, however, explores the possibility of a new form of law that renders that choice unnecessary. Advances in technology (such as big data and artificial intelligence) will give rise to this new form – the micro-directive – which will provide the benefits of both rules and standards without the costs of either.

Lawmakers will be able to use predictive and communication technologies to enact complex legislative goals that are translated by machines into a vast catalog of simple commands for all possible scenarios. When an individual citizen faces a legal choice, the machine will select from the catalog and communicate to that individual the precise context-specific command (the micro-directive) necessary for compliance. In this way, law will be able to adapt to a wide array of situations and direct precise citizen behavior without further legislative or judicial action. A micro-directive, like a rule, provides a clear instruction to a citizen on how to comply with the law. But, like a standard, a micro-directive is tailored to and adapts to each and every context.

While predictive technologies such as big data have already introduced a trend toward personalized default rules, in this paper we suggest that this is only a small part of a larger trend toward context-specific laws that can adapt to any situation. As that trend continues, the fundamental cost trade-off between rules and standards will disappear, changing the way society structures and thinks about law.

Keywords: law, technology, future, rules, standards, artificial intelligence, big data, prediction, communication, judges, regulators, legislature

Suggested Citation

Casey, Anthony J. and Niblett, Anthony, The Death of Rules and Standards (November 20, 2015). U of Chicago, Public Law Working Paper No. 550; University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 738. Available at SSRN: https://ssrn.com/abstract=2693826 or http://dx.doi.org/10.2139/ssrn.2693826

Anthony Joseph Casey

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.9578 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/casey

Anthony Niblett (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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