Nabben on Decentralised Autonomous Organisations’ as a Blueprint for Participatory Digital Organisation?

Kelsie Nabben (RMIT University – Blockchain Innovation Hub; Digital Ethnography Research Centre; RMIT University – ARC Centre of Excellence for Automated Decision-Making and Society) has posted “Governance of Algorithms, Governance by Algorithms: Are ‘Decentralised Autonomous Organisations’ a Blueprint for Participatory Digital Organisation?” on SSRN. Here is the abstract:

Algorithms are inherently centralised processes, from coding, to training, to deployment and maintenance. Meanwhile, blockchain communities are experimenting with “Decentralised Autonomous Organisations” (DAOs) as a participatory institutional framework for individual autonomy to organise outside organisations. DAOs are an attempt at decentralised organisation to self-govern, using algorithms, for autonomy from third-party mediation. This piece explores if DAOs can teach us anything decentralised approaches to the governance of algorithms. With the rise of algorithmic decision-making systems in public administrative processes, this research seeks to uncover the dynamics of DAOs as participatory ways to organise outside of organisations in the digital age. I explore the case study of “GitcoinDAO” as a decentralised organisation governed by algorithms, whilst simultaneously seeking to collectively govern algorithms to manage a machine learning process to detect fraudulent “sybil” attacks. With algorithms as peers in decentralised organisations, algorithms emerge as new political actors in how people organise outside of traditional organisations in the digital age. DAOs provide this institutional framework in the articulation of shared objectives, codes of conduct, and “constitutions”, to guide algorithmic governance design. This locates humans and algorithms as peers in organising, establishing algorithms as political actors in shaping and determining the outcomes of decentralised organisation and human autonomy. This research provides insights into the social outcomes of algorithmic governance for others seeking to explore participatory digital institutional infrastructures.

Schrepel on Smart Contracts and the Digital Single Market Through the Lens of a ‘Law + Technology’ Approach

Thibault Schrepel (University Paris 1 Panthéon-Sorbonne; VU University Amsterdam; Stanford University’s Codex Center; Sciences Po) has posted “Smart Contracts and the Digital Single Market Through the Lens of a ‘Law + Technology’ Approach” on SSRN. Here is the abstract:

The deployment of smart contracts within the European zone could fluidify economic transactions. It also risks fragmenting the Digital Single Market (“DSM”). This conundrum calls for a constructive response to preserve both the benefits brought by smart contracts and a strong DSM.

Against this background, this report adopts a “law + technology” approach. It suggests combining law and technology to develop solutions that encourage the evolution of smart contracts (rather than hindering it) in a direction that preserves and reinforces the DSM.

Kaal on Reputation as Capital – How DAOs Upgrade Finance

Wulf A. Kaal (University of St. Thomas, Minnesota – School of Law) has posted “Reputation as Capital – How DAOs Upgrade Finance” on SSRN. Here is the abstract:

Decentralized Autonomous Organizations (DAOs) have the potential to upgrade finance. This paper evaluates the design of and system requirements for a decentralized cryptocurrency venture capital investment club that is operating as a DAO (DAOIC). The design of the proposed DAOIC enables investors to substitute capital commitments by way of reputation token staking on proposed portfolio companies. The proposed design has the potential to lower capital requirements and free up liquidity for decentralized smart contract coordinated investment vehicles.

Didenko & Buckley on Central Bank Digital Currencies in the Pacific Island Countries

Anton N. Didenko (University of New South Wales – Faculty of Law) and Ross P. Buckley (same) have posted “Central Bank Digital Currencies as a Potential Response to Some Particularly Pacific Problems” (Asia Pacific Law Review) on SSRN. Here is the abstract:

Despite years of effort, financial inclusion persists as a major challenge in the Pacific Island Countries (PICs), with many in the region still lacking access to financial services. This article argues that central bank digital currencies (CBDCs) offer a potentially highly efficacious solution to (i) the financial inclusion challenges of the PICs and (ii) the problem of high remittance costs that currently serve as a tax on the earnings of Pacific Islanders abroad. We identify the key challenges that may inhibit the rollout of CBDCs in PICs but argue that in time such a rollout is nonetheless highly likely – since the key drivers of CBDC development in the region are likely to be external to PICs themselves. While their potential is very significant, we conclude that now is not the time to issue a CBDC in the region, but it is the time to begin laying the groundwork for this innovation by developing the expertise required within the region’s central banks.

Bet, Blair & Donna on The Economic Rationale of United States v. Google

Germán Bet (University of Florida), Roger D. Blair (same), and Javier D. Donna (same) have posted “The Economic Rationale of United States v. Google” on SSRN. Here is the abstract:

In 2020, the Department of Justice (DOJ) filed an antitrust suit against Google alleging that Google has unlawfully monopolized the markets for general search services, search advertising, and general search text advertising. The complaint raises questions involving market definition, monopoly power, and monopolizing conduct. In this article, we examine these issues through the lens of microeconomic principles. Our analysis finds that there is a sound economic rationale for the DOJ’s complaint.

Cyphert on GPT-3 and the Practice of Law

Amy Cyphert (West Virginia University – College of Law) has posted “A Human Being Wrote This Law Review Article: GPT-3 and the Practice of Law” (UC Davis Law Review, Volume 55, Issue 1) on SSRN. Here is the abstract:

Artificial intelligence tools can now “write” in such a sophisticated manner that they fool people into believing that a human wrote the text. None are better at writing than GPT-3, released in 2020 for beta testing and coming to commercial markets in 2021. GPT-3 was trained on a massive dataset that included scrapes of language from sources ranging from the NYTimes to Reddit boards. And so, it comes as no surprise that researchers have already documented incidences of bias where GPT-3 spews toxic language. But because GPT-3 is so good at “writing,” and can be easily trained to write in a specific voice — from classic Shakespeare to Taylor Swift — it is poised for wide adoption in the field of law.

This Article explores the ethical considerations that will follow from GPT-3’s introduction into lawyers’ practices. GPT-3 is new, but the use of AI in the field of law is not. AI has already thoroughly suffused the practice of law. GPT-3 is likely to take hold as well, generating some early excitement that it and other AI tools could help close the access to justice gap. That excitement should nevertheless be tempered with a realistic assessment of GPT-3’s tendency to produce biased outputs.

As amended, the Model Rules of Professional Conduct acknowledge the impact of technology on the profession and provide some guard rails for its use by lawyers. This Article is the first to apply the current guidance to GPT-3, concluding that it is inadequate. I examine three specific Model Rules — Rule 1.1 (Competence), Rule 5.3 (Supervision of Nonlawyer Assistance), and Rule 8.4(g) (Bias) — and propose amendments that focus lawyers on their duties and require them to regularly educate themselves about pros and cons of using AI to ensure the ethical use of this emerging technology.

Sunstein on Welfare Now

Cass R. Sunstein (Harvard Law School) has posted “Welfare Now” (Duke Law Journal, forthcoming) on SSRN. Here is the abstract:

Behaviorally informed interventions include nudges, taxes, subsidies, bans, and mandates. In evaluating such interventions, policymakers should consider both their welfare effects (including, for example, their potentially negative effects on subjective well-being) and their effects on distributive justice (including, for example, their potentially negative effects on those at the bottom of the economic ladder). Preference satisfaction matters to welfare, but preference satisfaction is not foundational: People might prefer Option A over Option B, but if Option B produces more welfare than Option A, we should not celebrate a situation in which everyone ends up with Option A. The arguments for investigating welfare effects, and effects on distributive justice, are meant as objections to efforts to evaluate behaviorally informed interventions solely in terms of (for example) ex ante revealed preferences and effects on participation rates. The arguments are also meant as pleas for analysis of the distributive effects of such interventions and for specification and investigation of their welfare effects, including their effects on experienced well-being. A pervasive concern is that behaviorally informed interventions might have negative welfare effects on subjective well-being that are easily ignored – as, for example, when information disclosure makes people sad or scared, or when a shift to healthier eating makes people enjoy their meals less. At the same time, such interventions might have positive effects on subjective well-being that are easily ignored – as, for example, when information disclosure makes people feel confident and safe, or when a shift to healthier eating makes people enjoy their meals more.

Chalkidis et al. on LexGLUE: A Benchmark Dataset for Legal Language Understanding in English

Ilias Chalkidis (University of Copenhagen; Athens University) et al. have posted “LexGLUE: A Benchmark Dataset for Legal Language Understanding in English” on SSRN. Here is the abstract:

Law, interpretations of law, legal arguments, agreements, etc. are typically expressed in writing, leading to the production of vast corpora of legal text. Their analysis, which is at the center of legal practice, becomes increasingly elaborate as these collections grow in size. Natural language understanding (NLU) technologies can be a valuable tool to support legal practitioners in these endeavors. Their usefulness, however, largely depends on whether current state-of-the-art models can generalize across various tasks in the legal domain. To answer this currently open question, we introduce the Legal General Language Understanding Evaluation (LexGLUE) benchmark, a collection of datasets for evaluating model performance across a diverse set of legal NLU tasks in a standardized way. We also provide an evaluation and analysis of several generic and legal-oriented models demonstrating that the latter consistently offer performance improvements across multiple tasks.

Recommended.

Molitorisova, Purnhagen & Šístek on Technological Collaboration between EU Administrations

Alexandra Molitorisova (University of Bayreuth, Faculty of Law; Masaryk University), Kai P. Purnhagen
(University of Bayreuth; Erasmus University of Rotterdam – Rotterdam Institute of Law and Economics), and Pavel Šístek have posted “Techno-regulation: Technological Collaboration between EU Administrations” on SSRN. Here is the abstract:

This article examines different forms of technological collaboration between Member States’ public administrations as currently present in the EU, namely institutional and transactional, drawing from examples in two sectors – telecommunications and food. The article argues that different collaboration forms can be explored more systematically by policy makers when faced with techno-regulatory choices. It subsequently argues that when developing techno-regulatory tools for the implementation and enforcement of EU law, national regulatory authorities should place technological cooperation at the forefront of their policy considerations. It concludes with a plea for an increased reciprocity in technological collaboration based on open-source solutions.

Winter on The Challenges of Artificial Judicial Decision-Making for Liberal Democracy

Christoph Winter (Harvard University; Instituto Tecnológico Autónomo de México) has posted “The Challenges of Artificial Judicial Decision-Making for Liberal Democracy” (P. Bystranowski, P. Janik, & M. Próchnicki (Eds.), Judicial decision-making: Integrating empirical and theoretical perspectives (forthcoming)) on SSRN. Here is the abstract:

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out to fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter.

The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area.