Thursday, January 23, 2020
Diane Ring (Boston College) presents Falling Short in the Data Age (with Shu-Yi Oei (Boston College)) at Duke today as part of its Tax Policy Workshop Series hosted by Richard Schmalbeck and Lawrence Zelenak:
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 how leeway arises, outlining the reasons it exists and the different ways it is deployed. Applying this taxonomy, we show how increasingly ubiquitous data and information have caused and will continue to cause the availability of leeway to contract, and we highlight the risk that we will see disparate contraction for different populations.
Building on these observations, we articulate a bounded defense of informal leeway to fall short of law’s requirements, despite the risks such leeway presents. We argue that, while leeway 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 contexts in which it is valuable and where its loss could be problematic. We articulate policy solutions to help manage data-driven contraction of informal leeway while minimizing leeway’s risks. These include constructing data silos, limiting data collection, and redesigning underlying laws for the data age.