Friday, October 25, 2019
Shu-Yi Oei (Boston College) presents Falling Short in the Data Age (Diane Ring (Boston College)) at Cornell today as part of its Faculty Workshop Series:
Humans are imperfect and do not always comply with the law, but the reality is that we are sometimes permitted to fall short of law’s requirements without consequences. This informal space to fall short and not be held accountable—which may arise from a confluence of information imperfections, resource constraints, politics, or luck—exists in addition to formal legal provisions that allow flexibility and discretion (such as tiered penalties or equitable provisions allowing leniency under specified circumstances). Fall-short spaces often pass unnoticed, but are in fact quite significant in intermediating the relationship between humans and the law.
This Article examines how the increasing access to data and information will change the availability and shape of law’s fall-short spaces.
We introduce a taxonomy of fall-short spaces, outlining the various reasons they exist and the different ways in which they are deployed. Applying this taxonomy, we show how increasingly ubiquitous data and information will cause some fall-short spaces to contract (and in fact is already doing so) and highlight the risk that data will generate disparate contraction of fall-short spaces for different populations.
Building on these observations, we articulate a bounded defense of fall-short spaces. We argue that, while fall-short spaces may compromise rule-of law-values, raise separation of powers concerns, and provide incentives for bad laws to stay on the books indefinitely, there are also contexts in which they serve a valuable function and where their loss might be problematic. We articulate potential policy solutions to help manage the challenge of contracting fall-short spaces in the data age, including data silos, limitations on data collection, and redesign of underlying laws for the data age.