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Rules, Standards, and the Era of Computation

The increasing power of computation is the most important force of our age. In Law’s Algorithm, written with Steve Wasick, I apply information theory to demonstrate that greater computational capacity can change the optimal form of law.  Because such increased capacity allows law to be more easily discovered it encourages the use of bottom-up forms of legal ordering, like the common law and standards. These forms of law have advantages in permitting law to evolve as it is applied to new facts and situations. But in comparison to fixed rules they also have disadvantages, because their application is more uncertain.  As legal search and prediction improves through the computation, however, the degree of this disadvantage declines.

Consider a law that requires citizens to drive at a particular speed—a classic rule. Twenty years ago Montana abandoned such a rule and instead  merely required citizens to drive at a reasonable speed—a classic standard.  But the change induced much litigation, and the Montana Supreme Court struck down the law because it failed to give sufficient notice to drivers of their legal obligations.

With improvements in computerized search of past legal decisions and in computerized sensing, cars could soon have an app to predict what the law would determine to be the reasonable speed, based on factors such as the condition of the road, the weather, and the time of day.  A driver would thus have notice, and society would have the efficiency advantages of continually matching its rule to the local conditions.

Ever better and more automated legal search will make such standards relatively more attractive throughout the law, other things being equal.  At the limit point of costless and completely effective legal search, law can be both flexible and instantly discoverable. If one could ask natural language questions about any legal issue and get a firm answer about the law, people could better adjust to follow the law, even if it were relatively complex.  Even before this point is reached, better access to the law can substantially temper the competing demands for clarity and flexibility in law.

The Article has two other general lessons.  Given that law is an information technology, information theory, including the ideas of Claude Shannon and Gregory Chaitin, is one of the most useful and unplowed fields for the interdisciplinary study of law.

Second, we may be new entering a new legal era:

Grant Gilmore famously divided American law into three eras. The Age of Discovery was marked by the new nation’s finding its own social norms and creating precedents that differed from Britain’s. The Age of Faith of the later nineteenth century forged a coherent set of rules from the precedents of the former age. The twentieth century’s Age of Anxiety reflected concern about the adequacy of these rules to reflect the law, in part because the increasing complexity of the world and the multiplication of precedents made it harder to find the law.

Today we inhabit the Age of Information and this age is creating a new synthesis for the structure of law. If the Age of Faith required formalism to regulate the legal world, the Age of Information, like the Age of Anxiety, accepts that many factors may influence the law. But the Age of Information, like the Age of Faith, has greater confidence in creating legal clarity. Both the Age of Information and the Age of Faith have their gods of legal order, but if the god of the Age of Faith was formalism, today’s god is computable realism. The rise of computable standards and dynamic rules will be this age’s contribution to legal expression.

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