BILETA Conference, Chris Reed keynote

by Paul Maharg on 30/03/2012

Battery was flat, no free p/point in main hall, so had to hand-write these notes, then type & upload later.  Strange experience, writing…  I think it might catch on.

Chris began his keynote on why laws fail in cyberspace by giving us examples of laws and lawmaking & lawbreaking, particularly in cyberspace.  In general, he argued, we obey not because of the command (contra Austin), but because we respect: a/ the lawmaker’s authority, b/ the law’s content, ie meaningful content.  Quick comment — is this strictly the case?  Don’t we need something akin to a Geertzian thick description of what actually goes on in these activities in order to fully understand motivation?  His keynote centred around a/ & b/ above.  So –

A/ Why does lawmaking fail so badly in cyberspace?  Because it’s much too wide-ranging.  We have laws that try to regulate the whole world, eg the Thomson/Reuters / defamation case.  Over-claiming reduces the authority of lawmaking in cyberspace.

B/ (From Fuller’s The Morality of Law)  A law system fails because:

  • law is secret
  • law isn’t understandable
  • law is contradictory (eg because of change in technology, or because of cross-border contradiction).

We could also add —

  • there’s a complete mismatch between how law is and how we are/what we do in cyberspace.
  • there’s a lack of effectiveness, eg E-signature laws

Problem is — who is the law addressed to?  Eg Data Protection law is addressed to the ‘data controller’.

Chris finished up by asking how do lawmakers get it right?

  • Talk to cyberspace users
  • Pull back claims to authority
  • Don’t regulate behaviour
  • Remember that technology constantly changes our behaviour
  • Regulate what people understand
  • Regulate outcomes

I liked this — anyone addressing failure is likely to be saying something interesting about the field, and Chris had some interesting things to say about regulation which could be applied to legal education, and which I’ll pick up on later in conference reflections.

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