Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! It has been a while since I’ve last written to you. In the last three weeks, I’ve rested quite a bit, and I got started with some of the work I want to do now that I’m done with my thesis.1 But, for the most part, a lot of my energy is going towards an involuntary crash course in European immigration laws and EU citizenship, as I sort out my legal status while in-between jobs.2 As a result, this issue will once again be pretty light on new research on AI.

Yet, I don’t plan to use this issue to bemoan my immigration woes. Especially as I got it really easy in comparison with most non-EU citizens in the EU.3 So, I will share a few readings that might interest you, as well as some job openings and call for papers within the remit of this newsletter. And, of course, I will wrap up with an adorable otter.

Readings on technology law

Mel Andrews and others, ‘The Reanimation of Pseudoscience in Machine Learning and Its Ethical Repercussions’ (2024) 5 Patterns 101027.

This article shows how ML models are often used to launder junk science. Pseudoscientific claims that have long been debunked in science, such as that one can infer personality traits from facial features, are often accepted without further reflection when somebody claims that a model can achieve these results. The article provides examples of this phenomenon, examines its epistemological foundations, and supplies some useful suggestions on how to deal with this issue.

Beatriz Botero Arcila, ‘AI Liability in Europe: How Does It Complement Risk Regulation and Deal with the Problem of Human Oversight?’ (2024) 54 Computer Law & Security Review 106012.

Many discussions about AI regulation focus on the risk regulation instruments that the EU and other jurisdictions are adopted. Even if one believes risk regulation is a useful tool for regulation,4 it cannot be the only game in town. The law still needs to sort out what happens when those risks come to pass and harms are caused by or through an AI system. This article, accordingly, examines the proposed EU approach to AI liability and its interplay with the AI Act.

Stefania Kolarz, ‘An Analytical Framework for EU Law Externalisation: The EU Data Protection General Regulation as a Case Study’ in Rossana Deplano and others (eds), Handbook on Interdisciplinary Research Methods in EU Law (Edward Elgar Publishing 2024).

Drawing from international relations frameworks, this book chapter suggests an approach to understand how and why EU norms spread abroad. Unlike established approaches to this end, this chapter tries to (and to a large extent succeeds) avoid an Eurocentric frame, acknowledging instead that other jurisdictions have agency regarding how and why they engage with EU sources.

Mélanie Gornet and Winston Maxwell, ‘The European Approach to Regulating AI through Technical Standards’ (2024) 13 Internet Policy Review.

An analysis of the role of harmonized technical standards in the EU regulatory framework for AI. Among other findings, they argue that harmonized standards are insufficient to establish whether fundamental rights are adequately protected, given the contextual nature of risks to said rights. (In a similar vein, see also my working paper with Nicolas Petit).

Kasia Söderlund and Stefan Larsson, ‘Enforcement Design Patterns in EU Law: An Analysis of the AI Act’ (2024) 3 DISO 41.

This article examines the AI Act’s enforcement structure in terms of “legal design patterns”. The idea of a design pattern comes from architecture (through computer science) and refers to reusable solutions to problems that appear elsewhere. In this article, such patterns are situated in reference to the GDPR’s approach to regulation, which allows one to identify potential issues with enforcement before they materialize in practice and suggest potential solutions to them. More generally, I’d recommend that you check out the entire special issue on legal design patterns.

General readings about the law

Mariolina Eliantonio and Yseult Marique, ‘Comparative Administrative Law in Europe: State-of-the-Art Overview and Research Agenda’ (2023) 30 Maastricht Journal of European and Comparative Law 689.

A very useful review of what is going on in administrative law, which can be helpful as an entry point to European debates and as a source of ideas about which gaps and new directions need to be explored.

Hanna Eklund, ‘Peoples, Inhabitants and Workers: Colonialism in the Treaty of Rome’ (2023) 34 European Journal of International Law 831.

An argument, base on the travaux préparatoires to the Treaty of Rome, of how the very idea of market freedoms in EU law was originally shaped by the fact that most of the signatories were colonial states at the time.

Farrah Ahmed, ‘Arbitrary Power: Caricature and Concept’ [2024] Law and Philos.

Whenever we discuss the idea of rule of law, it tends to be defined in opposition to arbitrariness. But what makes the exercise of power arbitrary? This article argues that the notion of arbitrariness is often connected with a caricature of the tyrant, and that, once we understand this connection, it becomes possible to see some of the issues with our characterization of arbitrariness.

Eleonora Di Franco and Mateus Correia de Carvalho, ‘Mutual Trust and EU Accession to the ECHR: Are We Over the Opinion 2/13 Hurdle?’ (2024) 2023 8 European Papers - A Journal on Law and Integration 1221.

One of the points from Opinion 2/13 that doomed the EU's previous attempt at ECHR accession was mutual trust. Since 2014, however, there is a widespread view that the ECHR and CJEU systems have been converging on that matter: the ECHR becoming more respectful of mutual trust and the CJEU clarifying the conditions under which one might derogate from the principle. The authors add some nuance to this triumphalism by pointing out situations in which the current state of play would lead to insufficient protection of fundamental rights.

Brian Bix, ‘Metaphysical Questions About Law: A Practice-Based Approach’ (SSRN Scholarly Paper, 17 July 2024).

An interesting call for an approach to legal philosophy that starts from the legal practices and puts them at the centre of inquiry, as opposed to more metaphysical questions about the essence and nature of law and legal norms.

Readers might also be interested in looking at the practice turn in philosophy of science. Even though I’m strongly in the law is not a science field, understanding what was gained and what are the stumbling blocks in this attempt to conceptualize a social practice might be useful.5

Random suggestions

As I discussed in the previous newsletter, I believe that it can be very useful to read things outside one’s specialism. That can be good not just for general culture, but as a source of ideas about what to study and how. Because of this, I am trying to direct my summer reads towards things I would not have the time or inclination to read in working hours. And I will try to share my off-brand recommendations more often.

Kate Clancy, Period: The Real Story of Menstruation (Princeton University Press 2023).

Albertina Antognini wrote a post on JOTWELL about why you might want to read this book. Check that post out, as it is more interesting than what I could say on this.

Paul Jepson and Cain Blythe, Rewilding: The Radical New Science of Ecological Recovery (Icon Books 2020)

I am well less versed in ecological themes than I’d like to be. Not only they are relevant for me as a living individual, but I believe there are important analogies to explore between environmental regulation and digital law. So, after reading Maria Farrell and Robin Berjon’s call for rewilding the internet, I decided to read a bit more about rewilding itself.

Antonio Tabucchi, Sostiene Pereira (available in English as “Pereira Maintains”)

A novel starring a Portuguese newspaper editor in the 1930s, who is going through the motions until he cannot do so anymore.

Calls and opportunities

Article 19 invites abstracts for the conference 2024 DMA enforcement: Trends and gaps in the first year of application. Submissions are due by 15 August, and the event will take place in November.

The European AI Office has opened a call for expression of interest to participate in the drawing-up of the first general-purpose AI Code of Practice. Expressions of interest are due by 25 August.

The Information Law and Policy Centre at the University of London invites papers for its 9th Annual Conference on 21-22 November 2024. Abstracts are due by 6 September.

Tilburg Law School is hiring a Postdoctoral researcher on fundamental rights and Artificial Intelligence. Applications are due by 8 September.

The 1st Doctoral Workshop on Law, Society and Artificial Intelligence will take place in Pisa on 2 December 2024. Abstracts are due by 30 September.

Last but not least, the EUI invites applications for a Max Weber postdoctoral fellowship. Fellows can be hosted by one of the EUI’s four departments (Law, History, Economics, and Social and Political Sciences), the Robert Schuman Centre for Advanced Studies, or the School of Transnational Governance. Apply by 18 October to spend a year in Florence (or two, depending on your affiliation), starting from the 2025-2026 academic year.

Finally, the otter!

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