The lone and level sands

Marco Almada

Marco Almada

— 8 min read
A pile of blue boxes is starting to fall down
Photo by Mihály Köles / Unsplash

Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! I was originally planning to continue last week's foray into the philosophy of science and whether it might help us think about the law. However, I find myself once again dragged into current affairs, as Mario Draghi gave a speech in Rimini about the EU's geopolitical vulnerability. Given that this has to do with some of the research directions I am interested in, I will try and think aloud about the topic. After that, you'll find the usual: some reading recommendations, academic opportunities, and a lovely otter!

Before that, a brief clarification is in order. After moving to Ghost, I have decided to turn on the option for paid subscriptions. There is just a single subscription plan, which does not offer any extra content or anything like that. The content of AI, Law, and Otter Things will remain free (as in beer, not as in software), but this paid option is there in case somebody feels like pitching in for hosting costs and the like. Think of it as a way of subsidising semi-regular otter pics and the content that accompanies them. You can also support the newsletter with an one-time tip, pay me a cup of tea at some conference, or simply spread the word to your friends. But the greatest value I derive from this newsletter is the continuous exchange of ideas with you folks, so please keep that going.

On an unrelated note, if you will be at the UACES annual conference in Liverpool next week, I will be presenting on Monday at 4pm, on the Digital Policy track, where I'll talk a bit about how technology-neutral regulation can disguise the exercise of power in the EU digital acquis. Earlier the same day, at 9am, Renata Vaz-Shimbo will present her ongoing research on informal care work and how it is (not) treated in the CJEU case law. Don't hesitate to say 'hi'!

Ninety-nine outside context problems

As I write this newsletter, the Heaven of Juristic Concepts is in a sorry state. International lawyers have been struggling with what is left of the profession amid the ongoing genocides,[1] liberals have found that institutional neutrality is no longer tenable within societies (if it ever was), not to mention the whole cottage industry of reflections about AI disrupting the law. Regardless of where one looks, it is easy to leave with the impression that the edifice of legal scholarship has some structural cracks.

To some extent, this has always been the case. It is hard to think of a more well-established tradition in academia (or in thought more generally) than pointing out that the current state of affairs is somehow broken. Some of those claims have turned out to be true and some part of our intellectual endeavours were abandoned or made worse off.[2] Other alerts turned out to come in time for the undesirable fate to be avoided,[3] while some of them turned out to be addressable by the evolution of our conceptual tooling.[4] Yet, there is always the fear that the Current Crisis might be what Iain M Banks called an outside context problem, that is, a situation so out of parameters that one cannot even make sense of the problem within our current worldview, let alone address it.

So, what does this have to do with Mario Draghi's speech on Friday? One of the strongest points of his talk is that the last months have punctured the illusion that the EU is a significant geopolitical power. Over the past decades, we have seen Brussels wield its economic weight to influence policy around the world, and quite a few theories have been proposed to explain that effect. Like any theory, these theoretical constructs try to explain something---in this case, the EU's perceived power---based on certain assumptions about the world an geopolitical actors. But, as Draghi point out, we now live in a world where both the assumptions of these theories and the very influence they aim to explain seem to be vanishing. Where do we go from here?

I do not think this change in geopolitical context amounts to a true Outside Context Problem for theories of EU as an international actor. After all, scholars of various theoretical and ideological bents have been pointing out to the growing role of political rationales beyond economic efficiency.[5] Furthermore, the idea of the neoliberal EU as an actor has always been more of an ideal type than a description of reality, as Single Market policy was all too often entangled with non-economic goals such as security.[6]

What we are facing is something more prosaic: theories break down once their hypotheses no longer hold true. For example, much of the Brussels Effect as originally formulated considers extra-EU businesses as relatively independent actors, but their margin of action may be consdierably reduced if they are targeted by the US or some other polity. However, there is a sense in which the idea of an Outside Context Problem can help us make sense of this particular mess.

While I was drafting this newsletter, the dynamic duo of Abraham Newman and Henry Farrell published an FT opinion piece in which they claim that the recent geopolitical turn cannot be solved by the EU's technocratic approach of framing it as a well-defined technical problem. A bigger rupture with business as usual is needed if the EU is to preserve relevance in the international landscape. Likewise, the theories that seemed to explain EU power in calm geopolitical waters, in which its economic influence was mostly left uncountered, may no longer be a reliable guide for making sense of a world in which less subtle forms of power are back in fashion. It is in this sense that our current articulations of the EU as a power might be facing an Outside Context Problem.

If current theories are inadequate, one has a few options beyond quietism. First, one might try to modify existing theories to incorporate new factors. A recent exercice in this regard is Matti Ylönen's attempt to reconceptualize the Brussels Effect by adding new actors and interactions between them. Such reconceptualizations aim at providing coherent frameworks that refine whatever they build on, potentially making those theories fitter for a messy reality. An alternative to that refinement exercise would be to propose new models from wholly different bases. That, of course, is an awful lot of work, but developing alternatives from the ground up might help avoid some of the jury-rigging and path dependence that are inherent to starting from existing practices. We will probably need to do both kinds of things in the next few years to identify whether and how the EU can navigate this 'geoeconomic turn'.

Of course, the outline above does not exhaust any of the discussion it raises. It does not show that existing theories cannot be salvaged, though I am somewhat skeptical of that, as it might be more beneficial (both policy- and theory-wise) to try to project forward instead of finding conditions in which old formulas for EU influence can work once again. The sketch above certainly does not offer a cogent case for what we should do, or show exactly how any of the other domains mentioned above are broken. But I think there is some value in voicing this idea that everything is broken. Not only doing so is a way to vent, but it might also help us find similarities (and differences) between how different conceptual edifices are breaking down. And maybe that will help us think better about how to face the small and big horrors the world throw at us.[7]

  1. Of course, theoretical disquiet is among the lesser problems, the most important thing being that there are some goddamn genocides going on. The links are not meant to be exhaustive of what is going on, but there are voices that are much better positioned to myself to say anything more meaningful than 'genocide bad, must stop' (which should be the standard position, but alas). ↩︎

  2. One example that comes to mind is that, after humans started to detonate atomic bombs in the 1940s, steel is often contaminated by nuclear fallout, creating all sorts of distortions for things like particle detectors. ↩︎

  3. For a practical, rather than conceptually oriented example, think of the Y2k bug. ↩︎

  4. Assessments of this kind of thing tend to be on the eye of the beholders, even more than the previous classes. What jumps to mind, in this case, is the discussion about 'revolutions in military affairs' in the 1990s and 2000s. ↩︎

  5. See, e. g., Sophie Meunier and Kalypso Nicolaidis, ‘The Geopoliticization of European Trade and Investment Policy’ (2019) 57 JCMS: Journal of Common Market Studies 103. ↩︎

  6. See, e.g., Tobias Liebetrau, ‘Problematising EU Cybersecurity: Exploring How the Single Market Functions as a Security Practice’ (2024) 62 JCMS: Journal of Common Market Studies 705. ↩︎

  7. At the end of the day, concepts won't solve any of the very real human problems we are facing. Thinking about them is no substitute for doing things that might make a difference, or that might have value in themselves. For examples of the latter, one might think about how some people (not me) derive pleasure from solving puzzles of any kind, or the sheer beauty of some kinds of research (non-applied math is the first thing that comes to mind). Personally, I think this intrinsic value is much less relevant when it comes to legal scholarship, but that's a subject for another day. ↩︎

You might want to read...

Academic publications

Blogging, newspapers, and magazines

Opportunities

Disclaimer: as usual, I am gathering these links purely for convenience and because I think they might be of interest to readers of this newsletter. Unless I explicitly say otherwise, I am not involved with any of the selection processes indicated below.

The Portuguese Competition Authority has an award for the best unpublished competition law paper. Submissions are due this Friday, 29 August.

The 2025 Platform Governance Research Network (PlatGovNet) conference invites abstracts until 2 September, with the conference taking place on 1-2 December.

Friso Bostoen and Inge Graef at Tilburg University are looking for a Postdoctoral researcher in Competition Law & Digital Regulation. Applications are due by 28 September, with the start of a 30-month contract envisaged by 1 January 2026.

The Institute of Public Administration at Leiden University is looking for two Assistant Professors in Public Administration, with particular interest in candidates whose research and teachning focuses on sustainability and/or digitalization. Applications are due by 14 September.

Also at Leiden, the Institute of Security and Global Affairs (ISGA) looks for an Assistant Professor with a specialization in Intelligence and Security. Applications for this position are due by 30 September.

The Department of Law, University of Southern Denmark is hiring one or more professors, at the Assistant or Associate level, in a broad range of areas. Applications are due by 17 November, with an envisaged starting date of 1 February 2026.

Finally, the otter

sea lion lying on bed rock
Photo by Eleonora Patricola / Unsplash

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