Karen Yeung

‘Hypernudge’: Big Data as a Mode of Regulation by Design’

ABSTRACT This paper draws on regulatory governance scholarship to argue that the analytic phenomenon currently known as ‘Big Data’ can be understood as a mode of ‘design-based’ regulation. Although Big Data decision-making technologies can take the form of automated decision-making systems, this paper focuses on algorithmic decision-guidance techniques. By highlighting correlations between data items that would not otherwise be observable, these techniques are being used to shape the informational choice context in which individual decision-making occurs, with the aim of channelling attention and decision-making in directions preferred by the ‘choice architect’. By relying upon the use of ‘nudge’ – a particular form of choice architecture that alters people’s behaviour in a predictable way without forbidding any options or significantly changing their economic incentives, these techniques constitute a ‘soft’ form of design-based control. But, unlike the static Nudges popularised by Thaler and Sunstein [(2008). Nudge. London: Penguin Books] such as placing the salad in front of the lasagne to encourage healthy eating, Big Data analytic nudges are extremely powerful and potent due to their networked, continuously updated, dynamic and pervasive nature (hence ‘hypernudge’). I adopt a liberal, rights-based critique of these techniques, contrasting liberal theoretical accounts with selective insights from science and technology studies (STS) and surveillance studies on the other. I argue that concerns about the legitimacy of these techniques are not satisfactorily resolved through reliance on individual notice and consent, touching upon the troubling implications for democracy and human flourishing if Big Data analytic techniques driven by commercial self-interest continue their onward march unchecked by effective and legitimate constraints.

Can We Employ Design-Based Regulation While Avoiding Brave New World?

... there’s always soma to calm your anger, to reconcile you to your enemies, to make you patient and long-suffering. In the past you could only accomplish these things by making a great effort and after years of hard moral training. Now, you swallow two or three halfgramme tablets, and there you are. Anybody can be virtuous now. You can carry at least half your mortality about in a bottle. Christianity without tears—that’s what soma is.

How can the criminal law support the provision of quality in healthcare

Background The egregious failings in patient safety at Mid Staffordshire NHS Foundation Trust between 2005 and 2009 identified by Sir Robert Francis QC in his public inquiry prompted him to recommend the introduction of a new criminal offence into English law in circumstances where a patient dies or is seriously harmed by a breach of fundamental standards. The authors evaluate whether, from the perspective of fairness and justice, a new criminal offence in this context is necessary and desirable. Methods The authors considered the basic principles and functions of the criminal law and compared them with the principles and functions of the civil law. They then identify two primary tasks for the criminal law to perform in healthcare settings: (a) to establish primary duties to patients consisting of appropriately graded offences targeted at conduct that harms patients or unjustifiably poses risks to patients, and (b) to establish secondary duties to patients, consisting of offences aimed at punishing and deterring instances in which healthcare management and workers undermine the goals of regulation by lying or giving misleading information to regulatory officials or by obstructing their work. The authors focus on the first of these functions, identifying the scope of existing regulatory schemes that may give rise to criminal liability in English law when applied to healthcare contexts to identify whether a new criminal offence is needed. Results A gap in the existing regime of criminal liability is identified, and it is this gap which a new criminal offence seeks to fill. The authors suggest how such an offence should be structured, drawing primarily upon foundational principles of criminal liability. It is suggested that a new general offence of wilfully neglecting or ill-treating a patient that can be committed by any healthcare organisation or worker (appropriately defined) is warranted. Conclusions The criminal law has an important role to play in the healthcare context. Its central function is not primarily to deter and coerce people into complying with standards of behaviour deemed desirable. Rather, its central function lies in its symbolic and expressive significance, publicly proclaiming that the highly culpable mistreatment of others is wrongful and worthy of public censure and sanction.

An Introduction to Law and Regulation: Regulatory instruments and techniques

Introduction One of the core concerns of the previous chapter involved attempts to explain why regulation emerges. In this chapter, we turn away from considering attempts to explain regulation, towards questions of mechanics, in responding to questions concerning how to regulate. In so doing, we will assume that the collective goals of a regulatory regime have been identified and defer consideration to whether those goals may be regarded as legitimate to the discussion in Chapter 5. By turning our attention to the mechanics of control, the scope of this academic inquiry may seem more concrete and less abstract than the previous chapters discussion of theories of regulation. Yet the ground may not be quite as firm as it initially appears, for, as we shall see, the literature in this field is rich and fertile, having been ploughed by scholars from a range of social scientific disciplines and sub-disciplines, including law, economics, public administration, public policy, comparative government and self-confessed ‘regulationists’. Despite the breadth of its variation, this literature is united by a common enterprise: to understand and explore the instruments and techniques by and through which social behaviour may be regulated, and the relationship between those techniques and their context. Our discussion begins by exploring the wide array of tools and techniques that are used in regulating social behaviour in order to acquire an understanding of their mechanics. This exploration proceeds by classifying instruments into broad categories, based upon their underlying technique or ‘modality’ of control.

Regulating Assisted Dying

A decade ago, a British woman suffering from a progressive and terminal illness sought an undertaking from the Director of Public Prosecutions (DPP) that if her husband assisted her in ending her own life because, due to her physical disabilities, she was unable to do so unaided, he would not be criminally prosecuted under section 2(1) of the Suicide Act 1981. The DPP refused, a decision which the House of Lords refused to disturb. One of its reasons for doing do so was expressed by Lord Bingham.

An Introduction to Law and Regulation: Regulation above and beyond the state

Overview The preceding chapters have identified and developed a series of analytical tools and framing devices that assist in mapping the growing field of regulation scholarship. As we made clear in the introductory chapter, our focus has hitherto assumed that regulation takes place within a nation-state. The explosion of interest in, and literature about, globalisation since the early 1990s reflects the changing regulatory landscapes and calls for examination of this assumption. Accordingly, this chapter will explore the degree to which the analytical tools and framing devices used throughout the preceding chapters can be applied to the supranational context, building directly upon the conceptual structure developed throughout the book. Although each field of social science is developing a voluminous literature on globalisation, broadly understood in various different terminologies, we will consciously avoid any attempt to map these terrains, although we occasionally cite some literature by way of brief example. Thus, unlike the earlier chapters, we are not integrating existing literatures into our mapping exercise, and as a result this chapter does not include extracts from selected texts. Rather, this chapter does two things. Firstly, we explore whether theories and techniques of regulation, as well as issues of regulatory enforcement and legitimacy, can be transposed to the supranational context. Secondly, we consider the role of law in regulation above and beyond the state.

An Introduction to Law and Regulation: Theories of regulation

Introduction A theory of regulation is a set of propositions or hypotheses about why regulation emerges, which actors contribute to that emergence and typical patterns of interaction between regulatory actors. In answering the ‘why’ question, we range beyond law to other disciplines, and much of the material in this chapter draws upon the disciplines of politics, economics and sociology. In order to understand the academic literature on this topic, it is helpful to bear in mind two core ideas, which help to differentiate the focus of theories of regulation. Firstly, some theories assume a relatively clear dividing line between public and private actors and institutions while others view the line as blurred both in theory and practice. Secondly, some theories focus mainly on economically defined goals, factors and influences, while others supplement this focus with attention to more broadly defined political goals, factors and influences. Somewhat less attention has been paid to the kinds of values and concerns which lawyers tend to emphasise in exploring the patterned emergence of regulation. The aims of this chapter are therefore twofold. Firstly, to guide the reader through the different theories of regulation, drawing out the contrasts between the roles they give to public and private actors and institutions, and the degree to which they incorporate efficiency-enhancing, redistributive and other broader social objectives. Secondly, to consider the facilitative role of law in theories of regulation and to introduce (within that role) the image of law as umpire.