Publications

Over the past three decades, cyberspace has gradually become an engine of unsustainable outcomes from an economic, social and environmental perspective. The European Commission has launched several new initiatives, in the attempt to restore public control over cyberspace, remedy the distributional imbalances generated by the rise of large-scale digital platforms, and promote Europe's digital sovereignty. The paper argues that only by embedding rules and values in “code” and preserving openness towards the rest of the world will the EU manage to achieve its desired goals. Current initiatives such as the data strategy, the AI regulation, the Digital Services Act and the European Cloud Federation appear still too sparse and uncoordinated to really deliver on Europe's ambition to lead the world in the sustainable use of technology.

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet, for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation, for instance through waivers, exemptions, and exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory schemes, and even undermine the rule of law. In this paper, we conduct the first systematic empirical investigation of the hidden world of unrules. Using a computational linguistic approach to identify unrules across the Federal Register, the Code of Federal Regulations, and the United States Code, we show that unrules are an integral and substantial feature of the federal regulatory system. Our analysis shows that, by several conservative measures, there exists one obligation-alleviating word for approximately every five to six obligation-imposing words in federal law. We also show that unrules are surprisingly unrestrained by administrative law. In stark contrast to administrative law’s treatment of obligation-imposing rules, regulators wield substantially more discretion in deploying unrules to alleviate regulatory obligations. As a result, a major form of agency power remains hidden from view and relatively unencumbered by law. Recognizing the central role that unrules play in our regulatory system reveals the need to reorient administrative law and incorporate unrules more explicitly into its assumptions, doctrines, and procedures.

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