The Death of Standards (with Anthony Casey)

Abstract

We predict the death of standards. While legal scholars have debated the merits of rules and standards in law for decades, advances in technology will give rise to a system where lawmakers rely exclusively on precise rules. This will fundamentally change the nature and structure of law. Two types of technology facilitate the death of standards. First, predictive technology such as big data and artificial intelligence will vastly improve lawmakers’ information. The rapidly improving precision of this technology will ultimately allow the design of specific ex ante rules for virtually every context. Second, as the complexity of rules grows beyond human processing capabilities, communication technology will simplify things and provide citizens with clear directives. Rules that take into account thousands of pertinent factors will be instantly communicated to a citizen as a simple yes or no message – a green or red light. Meanwhile, the cost of standards will not be impacted in the same way. The ex post nature of standards will continue to create uncertainty costs. The cost trade-off between rules and standards will, therefore, change and the justification for using standards will dissipate. While others have explored narrower effects of predictive technology, we foresee a wholesale change in the way society structures and thinks about law. The role of judges and lawyers will be diminished. The famous academic debate about rules and standards will become irrelevant. Other debates about autonomy, limitless rulemaking, and the ethics of entrusting machines with legal decisions will gain greater importance.