ASU experts produce special Jurimetrics issue on soft law

Led by the Center for Law, Science and Innovation at the Sandra Day O’Connor College of Law at Arizona State University, prominent legal and technology scholars published a special issue of Jurimetrics, The Journal of Law, Science, and Technology, to explore the role of soft law in governing emerging technologies.

Gary Marchant, Regents Professor of Law and faculty director of the center, along with Lucille Tournas and Carlos Ignacio Gutierrez, introduced the issue of Jurimetrics, the quarterly journal of the American Bar Association Section of Science & Technology Law.

This issue is part of a featured ASU Law project, made possible by a grant from the Charles Koch Foundation, to gather leading scholars in law, governance and artificial intelligence to investigate the use of soft law governance for AI as an alternative to traditional legal and regulatory frameworks that can hinder innovation and quickly become outdated. The articles examine past soft-law approaches to other technologies to see what lessons can be drawn for AI.

Pieces were contributed by ASU Law faculty Diana Bowman (writing on nanotechnologies) and Yvonne Stevens (on life-science technologies), as well as Professor Cary Coglianese from the University of Pennsylvania Law School (environmental technologies) and Professor Adam Thierer from George Mason University (information and telecommunication technologies).

Bowman, ASU Law’s associate dean for international engagement and full professor, wrote “The Role of Soft Law in Governing Nanotechnologies.” Stevens, a faculty associate, faculty member and scholar of the Center for Public Health Law and Policy, and an LSI faculty fellow, wrote “Soft Law Governance: A Historical Perspective from Life-Science Technologies.”

Gutierrez, Marchant and Tournas then authored a concluding paper that analyzed the findings of the four technology case studies for the soft law governance of AI. This work product was the first of three stages of the AI soft law project. While this first phase examined the lessons from past applications of soft law, the second phase is looking at current initiatives to govern AI using soft law. The third phase will examine potential future strategies for increasing the effectiveness and credibility of AI soft law.

ASU Law reached out to Josh Abbott, executive director of the center, to learn more. You can also access the papers at no cost here: http://lsi.asulaw.org/softlaw/.

Question: What does soft law mean and why is it important?

Answer: Soft law is best understood by contrasting it to hard law — i.e., legislation, statutes, regulations, executive orders, court decisions and local ordinances — all of which have the force of law and are enforceable by courts or that involve law enforcement. Soft law, on the other hand, involves sets of rules that are agreed upon but that do not have the force of law. Or as Professor Marchant has explained, soft law instruments “set forth substantive expectations but are not directly enforceable by government.” These may include things such as voluntary agreements, certifications, professional guidelines, industry standards, codes of conduct and best practices.

Soft law is important in several ways:

• It often fills in a gap when there is no hard law that addresses a particular problem. In such cases, it can provide “rules of the road” for people to follow, sometimes while waiting for formal rules to be adopted.
• Speed is another huge factor. Because soft law does not have to follow the same formal processes as hard law to be enacted, which can be very slow for things like legislation, it can respond more quickly to changing conditions or evolving technologies.
• So it’s more agile and adaptive, which also makes it less of a constraint on innovation.
• Another benefit is that it isn’t limited to a single jurisdiction, so it can apply across political boundaries, which makes a lot of sense for technologies and industries that are global.

Q: Why was the special edition of Jurimetrics produced?

A: The overall goal of the project was to explore ways in which soft law can be used as a governance approach for AI technologies. This issue of Jurimetrics examines ways that soft law, as a governance approach, has been applied to other technologies in the past to see what lessons can be gleaned from those experiences.

Each article contains a case study for different technologies: nanotechnology, life-science technology, environmental sustainability technologies, and information and communication technologies. The idea is that by understanding what has or hasn’t worked in the past for soft law governance of technologies and why, we can better judge the extent to which — or under what conditions — soft law can be applied to governing AI technologies.

Q: How does this effort further the progress of ASU Law’s soft law governance of AI project?

A: Because people tend to be more familiar with traditional, hard law approaches, they often overlook potential uses of soft law, especially for new and emerging technologies where there is a lot of uncertainty. We need to reach policymakers, corporate managers and technologists to help them see that when it comes to some of the wicked challenges of governing such a revolutionary technology as AI, there are more options to consider beyond traditional forms of regulation.

These articles go a long way in helping to answer some of the biggest questions around using soft law for technology governance. These questions include how to create incentives that work for persuading entities to follow soft-law-based guidelines.

• Which incentives work, and which ones don’t – and do we understand what makes the difference?
• What are the number and type of organizations, in both the public and private sectors, that tend to buy in to soft law mechanisms?
• Since soft law is not enforceable by governments, what types of enforcement mechanisms are available and how well do they work under different conditions?

Q: How are ASU Law students involved in the project?

A: One of the unique aspects of this project is the extent to which ASU Law students have been an integral part of it at every stage. Thanks to the grant funding we received, we were able to hire a number of students to help conduct the original research, gather and analyze the data, and write articles for publication in leading academic journals. These types of opportunities are typically reserved for law faculty and recognized academics. But our students are working side-by-side with some of the global experts on these issues. As a learning and professional-development opportunity for students, this project is unmatched.

And as AI technologies advance and become even more embedded in our everyday lives, the number and urgency of questions around how they should be governed will only increase. As the center continues to work on this and related projects, we will need ongoing help from students and others willing to contribute to this important work, including scholars, practitioners and policymakers.

If you would like to learn more or want to get involved, contact Gary.Marchant@asu.edu or Josh.Abbott@asu.edu.