Law and Information

I’m currently on my way to far-away Olympic Valley, CA, where I have the great pleasure to attend the Gruter Institute for Law and Behavioral Research Conference on Law, Behavior, and the Brain. The conference, led by Monika Gruter Cheney, brings together a terrific interdisciplinary group of roughly 40 experts in areas such as evolutionary biology, neuroscience, behavioral economics, and – yes – also a number of legal scholars. During four days, we will be exploring topics such as “State of Play: Law, Behavioral Biology and Neuroscience,” “Rationality, Emotions and Moral Judgments in Humans and Other Species,” “Property and Economics,” and “Results in Neuroeconomics and Experimental Economics,” to list just a few sessions. I’m much looking forward to learning from all conference contributors, including Paul Zak, Carl Bergstrom, Kevin McCabe, John Clippinger, Bruce Hay, Oliver Goodenough, Susan Bandes, Larry Frolik, Sara Beale, Terry Maroney, among many others.

Here are the abstracts of my contributions to the conference:

1) Panel on Law & Emotions

A recent interdisciplinary conference in Switzerland was dedicated to law & emotion scholarship. In my brief presentation, I would like to answer the apparently trivial question asked by a conference participant: “Given the fact that it isn’t that much of a surprise that even judges, prosecutors, etc. have emotions, and that therefore emotions play a role in decision-making processes with legal relevance, what’s really the contribution of law & emotion research and scholarship? What’s new about it?”. I will try to answer this question in a systematic way, arguing that law & emotion research has (or might have) an impact on (at least) two levels, each consisting of two elements: the analytical level with the elements “phenomenon (stipulated facts)” and “legal actors”, and the design level with “norms applicable to the facts of the case” and “norms governing the production of law.” I will use a few stories – ranging from file-sharing to the U.S. Patriot Act – to illustrate these points.

2) Presentation on Digital Institutions / Social Signaling Theory

Social signals play an important role in defining social relations and structuring societies, both in the on- and offline world. In my presentation, I will focus on the role of social signaling in the digitally networked environment. More precisely, I will explore the promises and limitations of social signaling theory as applied to cyberspace, including digital institutions. In essence, I will address three questions: First, in what online contexts do we have an interest in signal reliability and honest signaling? Second, what are regulatory strategies and approaches (using Lessig’s framework of four modes of regulation) to increase the reliability of social signals? And third, who will make the decisions about the degrees of required signal reliability in cyberspace?

3) New Insights into Property Panel

My last year’s presentation focused on a new generation of neuro-science-informed arguments aimed at explaining large-scale file-sharing over P2P networks. This year, my contribution to the property panel will not focus on the explanation of a presumably illegal activity, but on a socially desirable one: In my talk entitled “Social economics of collaborative creativity”, I will provide a brief overview of the literature that seeks to explain why thousand of volunteers work together in lose-knit networks to peer-produce an online encyclopedia (Wikipedia), to come up with improved versions of an open-source web browser (e.g. Mozilla), or create shared open content platforms, to name just three examples. The presentation ends with the outline of a research agenda.

I had the great pleasure to lecture at the 2nd Colloquium on Law of the Schweizerische Studienstiftung (Swiss Study Foundation), a foundation aimed at creating an interdisciplinary network among young high-potentials in Switzerland. Daniel Haeusermann had been on the planning committee of yesterday’s event, and so it might be less of a surprise that the Colloquium’s topic was “Law and Emotion”.

It was a lot of fun to present some of my theses on this multi-faceted topic. First of all, the Colloquium’s participants were very well prepared and made the discussion really interesting. Second, my Univ. of St. Gallen colleague Prof. Thomas Geiser did a great job in moderating the long day (room with no windows, wonderful sunshine outside…). Third, the Foundation invited a wonderful group of speakers, including Prof. Sandoz and retired Swiss Supreme Court Judge Franz Nyffeler. Last, but not least, it was the first time that I had the opportunity to speak at the same conference as my dad, Dr. Peter Gasser. He gave us a wonderful overview of the current state of the art of psychological and neuro-research on emotions.

I started my presentation with the thesis all speakers seemed to agree upon: Research (as well as life experience) suggests that emotions are constitutive and important elements of almost any phenomena with legal relevance. The emotional component is not limited to facts of the case before the court, but also includes decision-making processes by prosecutors, judges, legislators, etc. In some instances, the legal system is conscious about the emotional element – and in some instances it even explicitly addresses emotional phenomena, both with regard to norms applicable to the facts of a case (take, e.g., mitigating circumstances in criminal law; emotional injury in torts law) and the norms aimed at governing the legal decision-making process (e.g. the duty to recuse oneself in procedure law). In most cases, however, the legal system and its lawyers ignore the role of emotions and/or pretends to be “rational” (this perception of law might be particularly widespread among continental European lawyers).

Against this backdrop, I’m arguing that emotions – and research on emotions – play an important role at two levels, each level consisting of two elements: the analytical level with the elements “phenomenon” (stipulated facts, Sachverhalt) and “legal actors” (judges, attorneys, juries, etc.), and the design level with the components “norms applicable to the facts of the case,” and “norms governing the production of law” (e.g. procedure law). Here’s a rough sketch of the proposed framework:

• Analytical level:
• Phenomenon: Using the example of P2P filesharing, I tried to illustrate how a better understanding of the role of emotions (and that means: acknowledging emotions in the first place), makes us better observers and may lead to a deeper understanding of phenomena with legal relevance.
• Legal actors: Inclusion of insights from research on emotions may make us better legal professionals and thus improve the legal system. I used research on prosecutors’ strong feelings of loyalty as an example.

• Design level:
• Norms applicable to facts: New findings about emotions might force us to re-consider existing distinctions and think about new ones. I used the example of adjudicative competence (Dusky standard) as an illustration of this point (see this paper).
• Norms governing the production of law: New insights might lead to new mechanisms and fora that enable the system‘s actors to express, display, channel, balance, … emotional and rational elements of reasoning in a structured and discursive way. Consider, for example, procedural „speed bumps“ that would slow down legislation that is driven by fear – using the rapidly-enacted Patriot Act as a case in point.

In sum, law and emotion research and scholarship has an important agenda-setting function. The trickiest question, in my view, is as to what extent we (as a society) want to include insights from the sciences of mind. The heated debate about the existence of a free will – triggered by new neuro-biological and neuro-psychological findings – nicely illustrates this normative challenge before us.

My personal view is that we should include as much insights from science as we can as far as the analytical level is concerned. In contrast, I would be much more careful about applying insights from emotion research at the level of norm design. Although it is important to gain a better understanding of emotions at the design level, we would probably be ill-advised to incorporate latest insights from research on emotions without thoroughly discussing the normative implications of it on a case-by-case basis.

My colleague and collaborator Daniel Markus Haeusermann has sketched the contours of what he calls a “tentative taxonomy of legal scholarship and virtual worlds” over at his Information Law Possum blog. He differentiates among four basic categories that might be subject of inquiry: Offline law as applied to legal issues of MMORPGs of our world; our law as applied to things that happen within virtual worlds; the law of virtual worlds; and the relation between the law of virtual worlds and our law. Read on here.

I should also mention that Daniel recently published a terrific law review article in the Aktuelle Juristische Praxis on the possibilities and limitations of a legal approach to the protection of emotions related to faith – using the example of legal disputes associated with the controversial Mohammed-cartoons. I hope Daniel will soon provide an English summary of the article (which can be understood as a contribution to law & emotion scholarship) on his weblog.  Update: The English summary is now available (thanks, Daniel.)

After an incredible 22 hours trip from St. Gallen to Squaw Valley I finally made it to the Gruter Institute’s 2006 conference on Law, Behavior & the Brain. A fantastic group of roughly 40 leading researchers, scholars, and practitioners working in different fields – including biology, behavioral economics, neuroscience, and law – has gathered up here to explore a series of fascinating questions at the intersection of law, behavioral biology, and neuroscience. Among the panel topics: Law & Biology: The State of Play; Behavioral Biology Today; Law & Emotion; Property, IP, and the Brain; Evolution vs. Intelligent Design; Biology and the Elements of Reconciliation: Vengeance and Forgiveness; Cutting Edge of Law and Science.

Thanks to Monika Gruter Cheney and Oliver Goodenough, I had the pleasure to talk to the audience about large-scale copyright infringements on the Internet on the one hand and about emotional legal design (if you’re not familiar with the law & emotion movement, find here a terrific overview) on the other hand. Here’s the rough summary of my presentation entitled “The Quest for Principles of Emotional Legal Design”:

I’m fascinated by principles as a source from which things proceed. As a legal scholar, I’m particularly interested in legal principles (e.g. principle of equality); however, since doing research on Cyberlaw, I’m more and more fascinated by the emergence and effects of a different kind of principles, that is, by design principles (such as the end-to-end principle), which guide the building of complex systems, including (at least potentially) the legal system. I will refer to this type of principles also as “constructive principles.” In this context, I’m increasingly interested in identifying and discussing both analytical and constructive principles that might be derived from various bodies of knowledge, including knowledge accumulated in the 10+ schools of thoughts starting with “law & …” – ranging from law & economics, law & literature, law & technology, … to law & emotion. So, the question I’d like to explore today is: What can we learn from the law & emotion discourse as far as either analytical and/or design principles are concerned?

Before we start exploring this issue, however, let me briefly address the question why, at all, it seems important to crystallize such principles. In essence, I would like to suggest that a “principled” approach to law and legal processes has a series of distinct advantages. I would like to mention only two:

• Analytical principles can help us to gain a deeper understanding of social processes that are of legal relevance. In other words, they help us to better understand social phenomena related to the law in action as well as the law in the books. As such, analytical principles might help us dealing with the relevant phenomena. In an epistemological sense, they assist us to construct the world – our shared worldviews – based on a common set of insights, beliefs, rationales, and the like.

• Design principles or constructive principles, in turn, set the social engineers’ default standards, thus enabling us to build complex, decentralized and multi-actor systems in a more or less coherent manner – far beyond ad-hoc and case-by-case design choices. Furthermore, such principles encourage us to disclose and discuss particular design choices that are in tension with the guiding principles.

In this light and turning back to the first question: What are tentative analytical principles that we may derive from the law & emotion discourse as it stands today? I would like to propose two principles.
• Principle of implication: Arguably, the law & emotion research informs us that emotions are constitutive and important elements of almost any processes with legal relevance, including decision-making processes in courts (judges, juries), agencies, law-making bodies, and so forth. Indeed, the legal system involves human beings, and for them it is impossible not to have emotions. To better understand law and legal processes therefore also means to know more about emotional phenomena.
• Principle of interdependence: Emotional and rational phenomena are interacting with each other – they are inseparable. The relationship (among other things) can be neutral, re-enforcing, or contradictory. In any event, human beings depend on both “modes” of information processing and on the interaction between them. The principle of interdependence also applies to situations (what in German is nicely called Lebenssachverhalte) that make their way into the legal system. From the legal system’s viewpoint, it is important to understand these interactions and differentiate between the two modes.

Let me now turn to the second aspect: the quest for design principles. Frankly, the task to identify constructive principles is a much more difficult one. A review – although incomplete – of the law & emotion literature doesn’t seem to suggest a well-defined, overarching consensus regarding the normative implications of the findings for the building of legal systems at large. In some instance, for instance, it is debated as to what extent emotions shall make their way into the legal system at all. In others it is disputed what types of emotions and emotional mechanisms shall be taken into account by the law. Despite these difficulties, let me suggest two potential design principles that might serve as the starting point for a discussion about the possibilities (promises) and limitations (challenges) of such principles.

• Principle of inclusion: According to this principle, the legal system should aim to understand and take into account emotions and emotional mechanisms as empirical phenomena in a systematic and deliberative manner. If the legal system decides to exclude (or reduce the effects of) certain types of emotions or emotional mechanisms, or to ignore emotional phenomena in the context of certain areas of law, procedures, or the like, these design choices and the underlying arguments should be made transparent and opened up for debate.
• Principle of integration: The legal system (based on the insights by law & emotion research) should provide and further develop appropriate mechanisms and adequate fora that enable the system’s actors (including the parties of a dispute, lawyers, witnesses, jurors, judges, etc.) to express, display, channel, synchronize, balance, or align to the extent possible and desirable both the emotional and rational elements of reasoning in a structured and discursive way.

The relevance of such principles – both at the analytical and constructive level – can be illustrated by the Muhammad Cartoon controversy. The Muhammad cartoons controversy began after publication of 12 editorial cartoons in a Danish newspaper, most of which pictured the Islamic prophet Muhammad, which the newspaper said it was doing as part of a debate regarding criticism of Islam and self-censorship in Denmark. Critics of the cartoons have described them as islamophobic and argue that they are blasphemous, while supporters claim that they illustrate an important issue in an age of Islamic extremist terrorism and their publication exercises the right of free speech.

Now, emotions rooted in religious beliefs are often protected by laws in European jurisdictions – including by provisions of criminal law. My colleague Daniel Haeusermann at the Univ. of St. Gallen discusses in a recent paper in great detail how the relevant provision of the Swiss Penal Code, among others, struggles to deal with an issue such as the Muhammad cartoon controversy. Haeusermann shows on the one hand that the legal system lacks a basic (analytical) understanding of the emotions and emotional mechanisms involved in this particular controversy. On the other hand, he suggests that the law could respond in a more sophisticated way by establishing discourse-oriented mechanisms and loosely mediated public fora outside the court system in order to enable the channeling of emotions among the parties involved.

In that sense, the cartoon controversy might serve as a case study to apply, test and further develop the design principles sketched in this presentation – both from an analytical and normative perspective.

After an intense and wonderful “Law & Economics of Cyberspace”-teaching experience with my friend and colleague John Palfrey, I started working today on my contribution to the upcoming Gruter Institute‘s Squaw Valley Conference 2006 on Law, Behavior & the Brain, where I will be participating in a session on Law & Emotion. Here’s the abstract of my presentation, entitled “The Quest for Principles of Emotional Legal Design”:
The presentation is intended as a contribution to the emerging field of scholarship at the intersection of law and emotion. However, instead of providing findings of prior research or research in progress, I would like to present and discuss a few hypotheses—and even ask some questions—that mark the very beginning of one of the speaker’s research projects.
Two beliefs are the starting point for my inquiry. First, I argue that the law & emotion scholarship has made a strong case why, in fact, emotions are of relevance to the legal system. Second, I suggest that in-depth and cross-disciplinary research in the field of law & emotion will soon be complemented by a discussion about what we might call “emotional legal design”, i.e., a discourse about the design principles aimed at guiding the future development of a legal system that takes the findings of law & emotion research serious.
Against this backdrop, I will formulate a series of theses that address, inter alia, the following questions:

• What are “emotional legal design principles”, and how might they look like?
• What is the underlying rationale and justification of such principles?
• What goals can and should they achieve?
• How can “emotional legal design principles” be applied and concretized?

The presentation ends with an illustration of the (possible) ramifications of the suggested design principles by using the Mohammed cartoon controversy as an example.

Any inputs, thoughts, and comments much appreciated!