Wednesday, December 29, 2010

Law without Categories?

A recent New Scientist story about the descent of birds from dinosaurs (James O'Donoghue, Living dinosaurs: How birds took over the world, Section 2, Was archaeopteryx really a bird?, 08 December 2010; subscription required) contained this passage:
The real question is, where do you draw the line between dinosaurs and birds? Ask different palaeontologists and you will get subtly different answers. That is because the distinction is basically arbitrary, says Xing Xu of the Institute of Vertebrate Paleontology and Paleoanthropology in Beijing, China, who discovered many of the Chinese fossils [of feathered dinosaurs].
This is a common theme in biology: the boundaries between species are arbitrary. And yet we continue to think in terms of species, since categorization is such a strong human reflex.

Jurisprudence and regulation in particular is built on categorization, defining categories that determine the response to a particular situation. At the heart of current network neutrality argument is the question of whether  a company falls in "Title II" in which case a whole raft of  telecommunication regulation regarding common carriage applies, or "Title I" in which case they are much more lightly regulated.

However, as the analogy to biology illustrates, most interesting categories have fuzzy boundaries, making for a delightful amount of work for lawyers and lobbyists, but not necessarily helpful outcomes.

Taxonomies are backward-looking; they attempt to fossilize a reality but are constantly open to revision. (This necessity for revision undermines the certainty which category-based rules purport to offer since categories are less robust than they appear, necessitating the case-by-case interpretation which proponents of rules contend is the weakness of the alternative approach, principles-based regulation.) They evidently work well enough, though; they're pervasive. A paper by David Bach & Jonathan Sallet about VOIP regulation (The challenges of classification: Emerging VOIP regulation in Europe and the United States, First Monday, Volume 10, Number 7, 4 July 2005) explains the situation very well:
From a practical point of view, classification stands out because classifying different services is what regulators principally do. In an ideal world, one could just draw up rules for VOIP that address the aforementioned critical issues, keeping in mind the technology’s novelty and the substantial differences that exist between conventional circuit–switched telephony and innovative packet–switched VOIP. In the real world, however, a first step in the regulation of new technologies is usually to try to fit them into existing service categories, in part because those are the tools that regulators work with and in part because classification can provide shortcuts through complex regulatory problems. Alternatively, regulators may be inclined to ask whether VOIP service is "like" or "substitutable" for current services — an approach that may obscure technological achievement. Either way, much is at stake in these decisions.
Fitting VOIP into existing regulatory categories is not simply an administrative or technical act. Since categories are associated with distinct sets of rights and responsibilities that have distributional and market strategic implications, a large number of stakeholders have mobilized to affect the outcome. . . .
Unpacking the political economic dynamics of evolving VOIP regulation highlights a second, more analytic reason to focus on classification. The debate over how to classify VOIP represents the leading edge of the question whether regulatory classification is useful in a world of converging technologies. . . .
In the eyes of most regulators and industry observers, correctly categorizing VOIP provides a shortcut through regulatory uncertainty. Yet precisely this is the problem with classification. As policymakers almost reflexively ask how a new technology fits into existing categories, the underlying political and social objectives of regulation can get lost.

A behavioral alternative comes to mind: the regulations that should apply do not derive from the category into which an action falls, but from its consequences; in Bach & Sallet's terms, one needs to look to the political and social outcomes, not the inputs.

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