The Law between Generality and Particularity - Potentials and Limits of Personalized Law
Busch/De Franceschi, Data Economy and Algorithmic Regulation (2020 Forthcoming)
45 Pages Posted: 7 Jan 2020
Date Written: December 13, 2019
Over the recent years, a legal debate has emerged around “granularization of legal norms” or – as it is sometimes put differently – “personalized law”. This debate is inspired by two parallel technical developments, both related to the emergence of high-capacity algorithms: (i) The significant increase in data collection and data availability, generally discussed under the term “Big Data” and (ii) the omnipresence of modern communication systems which distribute information to each single person and thus link this person to the rest of society, which can be illustrated by the term “Big Link”. The debate on “personalization” revolves around the proposition that the technological potential of “Big Data” and “Big Link” may profoundly change or even revolutionize the law turning it to become greatly (or even infinitely) personalized. While the prospects of technological change seem huge, the article suggests to approach the topic with some humility. In its first part, we venture to structure the personalization discourse by introducing some fundamental dichotomies which may lead to useful notional distinctions (II.). Based on the findings of the notional part, the article will then concentrate on what we would like to call the “evolutionary perspective”. Here, we will explore the potential of personalization with regard to specific issues, elements and structures of “the law, as we know it”, such as torts, default rules, and disclosure (III.). The evolutionary perspective will suggest that the principle of equality and the model function of the law provide important insights into where the law should halt in its oscillation between generality and particularity. As the discourse on personalization reaches beyond the traditional elements of the law, we will then, in the final part of this paper, turn to what we would like to call the “revolutionary perspective”: the potential of changes in the very structure of the law. (IV.).
Keywords: personalization; granularization; personalization of the law; granularization of the law; Big Data; Big Link
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