This chapter identifies three shortcomings in our preparedness for the governance of future worlds of consumers and AI. If our governance is to be smart, there must first be a systematic gathering of regulatory intelligence (to understand what does and does not work). AI givernance will require new institutions that are geared for the kind of conversations that humans will need to have in the future to adjust to a radically different approach to governance

Taking a lead from Graeme Laurie’s willingness to ‘think outside the box’ – typified by his more recent work on ‘liminality’ – this chapter has as its thrust the idea that medical jurisprudence needs to speak to more than the leading cases and the nice doctrinal questions. It also needs to get the regulatory environment right for the upcoming technological developments – in genetics, robotics, additive manufacturing, nanotechnologies, artificial intelligence,, machine learning etc. – that promise to transform medical practice. Following this line of argument, medical lawyers should think outside the box of Law 1.0, where traditional legal principles, concepts and precedents are applied to new technologies and novel applications; engage with the regulatory challenges, including the challenges of regulatory connection and effectiveness but particularly that of regulatory legitimacy, that are the subject of Law 2.0 thinking; and join the embryonic Law 3.0 conversation, which contemplates not only smart technological solutions to regulatory problems but also humans being taken out of the loop (as both regulators and regulatees).

New technologies, techniques, and tests in healthcare, offering better prevention, or better diagnosis and treatment, are not manna from heaven. Yet, how are the interests in pushing forward with research into potentially beneficial health technologies to be reconciled with the heterogeneous interests of the concerned who seek to push back against them? A stock answer to this question is that regulators should seek an accommodation or a balance of interests that is broadly ‘acceptable’. The central purpose of this chapter is to suggest that this balancing model needs to be located within a bigger picture of lexically ordered regulatory responsibilities. The paramount responsibility of regulators is to act in ways that protect and maintain the conditions that are fundamental to human social existence. A secondary responsibility is to protect and respect the values that constitute a group as the particular kind of community that it is. Only then do we get to a third set of responsibilities that demand that regulators seek out reasonable and acceptable balances of conflicting legitimate interests.

Legal and regulatory responses to emerging technologies vary from one technology to another, from one legal system to another, and from one time to another. Although under some legal systems, the response to a particular technology might be restrictive, under others it might be permissive; even facilitative. Sometimes the regulatory focus is a novel process; at other times, it is a novel product or a particular use or application. Some regulatory cultures tend to be precautionary, others tend to be proactionary, and others respond case by case, providing no simple pattern or stock response.

Different technologies, moreover, elicit different kinds and different degrees of concern. Fukuyama (2002) famously expressed deep moral concern about millennial developments in human biotechnology (that threatened to compromise human dignity), but much less concern about the possible threats to privacy and equality presented by information technology.

The author examines the impact of blockchain and smart contracts on the legal profession. After all, the lawyer is entitled to draft smart contracts. For a few years now, in information technology, the lawyer has promoted the writing of so-called agile contracts in connection with projects run by “agileȁ methods. However, the smart contract, whether described as a contract or simple algorithm, challenges the lawyer by its philosophy (“code is law”) and by its writers who are no longer jurists but developers. He discusses whether this technology will be “killing off” the legal profession. Before over-hastily assuming this apocalyptic demise of the lawyer, the author suggests to think about the role and the status of the lawyer in his general mission of advice and defense, and considers whether information technology can be a substitute for the lawyer or simply a new tool that could be used.

ABSTRACT

This chapter poses two principal questions. First, even if, at the time of its enactment, Directive 2000/31/EC (the E-Commerce Directive) was right to treat off -line and on-line transactions as functionally, contextually, and normatively equivalent, does that continue to be the appropriate regulatory view? Secondly, how should regulators view the distinction between on the one hand transactions that are made (off -line or on-line) between business suppliers and consumer contractors and on the other, automated transactions for the supply of goods or services to consumers?

Responding to the first of these questions, it is suggested that there are reasons for thinking that the context for on-line transactions is materially different from that for off -line transactions, as a result of which the balance of contracting power and influence in on-line transactional environments has changed, to the detriment of consumers. Accordingly, for the sake of consumer protection, the time is right to review the prevailing regulatory view.

Responding to the second question, it is suggested that where transactions for routine consumption of goods and services are fully automated, consumer contractors seem to be reduced to mere consumers. Arguably, this represents a radically new context for consumption that invites a bespoke regulatory response. Moreover, to the extent that consumer transactions are technologically mediated or managed, this implies that the guidance provided by rules will not be directed at those who supply consumer goods or services or at those who consume such goods and services so much as at those who design and supply the systems that manage those transactions.

INTRODUCTION

Twenty years ago, when UNCITRAL published its Model Law on Electronic Commerce, there was felt to be an urgent need to set out ‘internationally acceptable rules aimed at removing legal obstacles and increasing legal predictability for electronic commerce.’ In particular, it was thought to be important to provide ‘equal treatment to paper-based and electronic information’. In Europe, too, this sense of urgency and importance was shared. If small businesses in Europe were to take advantage of the opportunity afforded by emerging Information and Communication Technologies to access new markets, and if consumers were to be sufficiently confident to order goods and services on-line, it needed to be absolutely clear that e-transactions (no less than ‘traditional’ contracts) were recognised as legally valid and enforceable.