Structured Legislation: Toward the Synthesis of Better Law and Regulation of Electronic Communications

Abstract

Why is it so difficult to draft laws and regulations that are coherent, consistent, and free of logical errors? Electronic communications laws in the European Union and in the United States (and probably everywhere else) are, we would contend, replete with ‘bugs’ – logical errors in their formulation. Some bugs are small, with limited effect. Others (notably in the United States) can have great effect. A great deal of effort has been invested over the years in the use of tools and formal methodologies to interpret existing laws (under the rubric of statutory construction), but surprisingly little in the use of formal logical methods to create better laws and regulations in the first place. Could ideas and tools be borrowed from other disciplines to enable the formulation of laws and regulations that more accurately express their intended purpose? We contend that the parallels between large computer programs and large laws and regulatory rulings are far closer than has been appreciated, and that some of the same techniques that have been developed over the past four decades to reduce the incidence of errors in computer programs might profitably be adapted to the task of reducing inadvertent logical errors in legislation and in regulation. This could serve to enhance both the accuracy and the maintainability of laws. The examples are drawn from telecommunications laws and regulations on both sides of the Atlantic, but the underlying principles are probably relevant to all laws.