'Slack' in the Data Age

73 Alabama Law Rev. (2021, Forthcoming)

61 Pages Posted: 28 Apr 2021

See all articles by Shu-Yi Oei

Shu-Yi Oei

Boston College Law School

Diane M. Ring

Boston College - Law School

Date Written: April 22, 2021

Abstract

This Article examines how increasingly ubiquitous data and information affect the role of “slack” in the law. Slack is the informal latitude to break the law without sanction. Pockets of slack exist for various reasons, including information imperfections, enforcement resource constraints, deliberate nonenforcement of problematic laws, politics, biases, and luck. Slack is important in allowing flexibility and forbearance in the legal system, but it also risks enabling selective and uneven enforcement. Increasingly available data is now upending slack, causing it to contract and exacerbating the risks of unfair enforcement.

This Article delineates the various contexts in which slack arises and presents a bounded defense of slack, despite its risks and notwithstanding the parallel existence of formal leniency provisions in the law. It explains how increasingly available data is reshaping slack and highlights the risk of disparate contraction of slack for different populations along lines of race, political power, and sophistication. Ultimately, this Article proposes a framework for managing the complex relationship between slack and data and suggests policy solutions to address data-driven contraction of slack while minimizing slack’s risks. These policy solutions include limits on data collection, construction of data silos, and fundamental rethinking of legal rules and the role of government.

Keywords: data, surveillance, big data, privacy, algorithm, enforcement, leniency, bias, race, latitude, equity, flexibility, forbearance, information, personalization, targeted enforcement, slack, under enforcement, mercy

JEL Classification: K10, K14, K20, K22, K23, K34

Suggested Citation

Oei, Shu-Yi and Ring, Diane M., 'Slack' in the Data Age (April 22, 2021). 73 Alabama Law Rev. (2021, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3832120

Shu-Yi Oei

Boston College Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Diane M. Ring (Contact Author)

Boston College - Law School ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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