Tuesday, September 24, 2019
Shu-Yi Oei (Boston College) presented Falling Short in The Data Age (with Diane Ring (Boston College)) at South Carolina yesterday as part of its Tax Scholars Workshop Series hosted by Tessa Davis & Clint Wallace:
This Article advances a descriptive claim about how relationships between laws, humans and governments are currently constituted, makes a series of predictions about how data will change that state of the world, and advances policy solutions to manage the fallout.
The descriptive claim is that for better or for worse, humans are often allowed to fall short of law’s requirements without consequence, and this space to fall short has been important in intermediating the relationship between humans and the law. This leeway to fall short—which comes about due to factors like luck, resource constraints, resource prioritization, or limited information—allows humans the space to be imperfect but, importantly, also allows laws and polities the space to be imperfect as well.
Our predictive claim is that the growing ubiquity of data and information will change the size, shape, and distribution of these fall-short spaces in ways that may be beneficial in some contexts but troubling in others. Specifically, we argue that data will cause fall-short spaces to shrink, and to shrink disproportionately for certain populations. We also argue that data will call fundamental aspects of law’s design (such as penalties) into question. We argue that, in certain situations, fall-short spaces serve a valuable function and that their loss is troubling.
This Article advances a number of policy solutions that may, in combination, be employed to manage changing fall-short spaces in the data age. These include management of information architecture and construction of information silos, mitigation of bias in enforcement, and modifications to underlying law in light of ubiquitous data.