Regulatory weapons of the weak
Some thoughts on regulatory influence, as well as lots of links
Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! I hope you are doing well. It hasn’t been much time since my latest newsletter, but today I felt the need to advertise some upcoming events and a recent publication. After that, I will share some early thoughts about resistance to policy diffusion. Finally, the usual: some reading recommendations, opportunities, and otters.1
Self-promotion corner
In the following weeks, I will be involved in two events that might be of interest for readers of this newsletter:
On 27 February, from 14:00 to 15:00 CET, Volker Stocker and the folks at PLAMADISO will kindly host me (online) to talk about “A procedural theory of technology neutrality”. Looking forward to discussing this updated version of some core insights from my PhD.
On 7 March, from 12:30 to 14:00 CET, our Cyber Policy team at the University of Luxembourg will kick-start our “Phish and Chips” series with a talk by professor Myriam Dunn Cavelty (ETH Zurich). She will focus on how and why cyberspace has evolved from a fifth domain of warfare to a tool for sub-threshold destabilization, and finally to a resource in strategic competition. Join us, either in person or online.
After a bit under three years of work, my article on the AI Act with Nicolas Petit is finally out! In “The EU AI Act: between the rock of product safety and the hard place of fundamental rights”, just published by the Common Market Law Review, Nicolas and I provide an introduction to the AI Act’s overarching logic, which we use as a starting point to discuss how the Act addresses (and ultimately still has to live with) three classic issues of law & tech: the pacing problem, the mismatch between means and ends, and institutional path dependence. If you have read a previous version of the article, this version features what I take to be a much clearer formulation of our core arguments. It also updates references and citations to the final version of the AI Act and the literature that came out since late 2023, and includes a much clearer introduction to the Act. Fun for the entire family!
Living with regulatory influence
Almost a quarter-century ago, John Braithwaite and Peter Drahos wrote a gargantuan book on the global dynamics of regulation. One key insight they distill from their efforts is that the states can wield their power more effectively in the international sphere if they follow seven practices:
Concentrate nodally the power under your direct control
Have a big stick and threaten to use it
Have a responsive regulatory strategy that scales responses to the level of breach that must be addressed
Networked governance
Be creative and assertive at nodes of networked governance
Concentrate technical competence at nodes
Shift forums whenever things are not going your way
Arguably, this playbook is what led to the Brussels Effect’s early successes, as the EU capitalizes on the sophistication of its regulatory frameworks, its reputation for regulatory capacity, and most of all the size of its market. However, one would be naïve to deny that this game is best played by the United States, who not only have the power and resources they need to shape discussions at a global scale but have usually managed to deploy it strategically enough to get things their way quite often.
If anybody needed a reminder of their effectiveness, and of the resources at their disposal, the last few months have provided quite a few of them. In tech alone, we had Biden’s final orders on export controls, followed more recently by JD Vance’s tirades against European regulation. Naturally, this raises the question of what can other actors do when faced with this kind of power?
In a follow-up article, Braithwaite made a convincing case that the seven practices outlined above can also be wielded by states that do not have the same power as the EU, the US or—to a lesser extent—developing countries. By pooling resources and capabilities, and mobilizing more and more actors as issues escalate, weaker actors can reach a position in which they can bring their “betters” to the table by posing a real threat to their interests. Braithwaite’s article presents examples from trade deals involving developing countries, and mentions that the threat of articulated and target debt strikes might prove to be a powerful negotiating tool. More generally, one might argue that the EU itself offers an example of this approach, as it allows many smaller European states to present a united front among themselves and with bigger powers, allowing all of the involved to punch above their individual weight at an international scale.2
This articulation of efforts might not be enough to stop powerful interests. Coalitions, especially at the international scale, can be quite brittle to craft and maintain. And, even if a coalition stays together, it might still fail in achieving its goals. See, for example, the early signs by the European Commission that it will rein in some of its proposed regulatory initiatives and slow down enforcement against big tech interests. Even in this case, however, there are alternatives to pure acquiescence.
One source that I found particularly useful for thinking about that is James C Scott’s Weapons of the Weak. This book offers an anthropological study of how peasants resist to adverse economic and political developments in circumstances in which open revolt is not likely to succeed. By dragging on their work, relying on reputational sanctions, and other practices, they stay within the limits of “socially acceptable” resistance while still delaying or even leading policymakers to scrap some policies. Accepting the big picture—at least for the time being—does not necessarily means one has no means left.
Of course, Southeastern Asian peasants are far from a clear analogue to nation-states, not least because even the puniest of the latter can mobilize considerable resources. Still, reading the book made me think about the various mechanisms through which states can try and shift outcomes even if they “accept” external interferences with their regulatory powers. Some of these are subtle and even involuntary. For example, comparative law scholars have long warned that even the most straightforward legal transplants do not operate equally in the “donor” and “recipient” legal systems, as each one has their own context, legal practices, and path dependencies. Others might be more deliberate, such as weaker states trying to actively lobby lawmaking in countries exercising their domination or seeking other forums for exercising their powers. For instance, the EU-driven push towards a very technical approach to AI regulation might bring more attention to international standardization bodies and their relationship to national standardization practices.
There is extensive political science literature on policy diffusion and its impact on the recipients of that diffusion. I would not dare to say I am conversant in that literature yet, but even my superficial contact suggests it brings a focus on the recipients that is often missing from legal discussions of how regulation moves around.3 Taking the other side into account can be useful both in policy terms—for actors designing strategies of resistance when direct confrontation is not feasible—and for obtaining a broader perspective on influence phenomena that are usually portrayed as unilateral. I would be really interested in reading work that covers this kind of legal reception, so please don’t hesitate to let me know if you’ve come across something new about this.
Some vintage readings
Given that the latest newsletter was published a few days ago, I’ll depart a bit from my usual recommendation strategy of sharing nice things I’ve come across in the last few days. Instead, today I will share a few older works that might be of interest to some of you. As I mentioned in a previous issue, I’m a big fan of revisiting classics and older discussions, which is something I should do more often in fact.
So, I hope the following list might call your attention to something you haven’t read before, or prompt you to revisit something nice. As usual, I do not want the list to be a coherent set of readings. I would be slightly surprised if somebody was interested in everything here. The idea is more to share a list from which readers can pick bits and pieces as they see fit. And, please, don’t hesitate to share your favourite “oldies”, especially those that you think are overlooked.
Robert M Cover, ‘Violence and the Word’ (1986) 95 The Yale Law Journal 1601.
David Edgerton, ‘De l’innovation aux usages. Dix thèses éclectiques sur l’histoire des techniques’ (1998) 53 Annales 815.
Andrew Feenberg, ‘Subversive Rationalization: Technology, Power, and Democracy’ (1992) 35 Inquiry 301.
Leszek Kolakowski, ‘In Praise of Inconsistency’ (1963) 10 Dissent Magazine 201.
Barbara H Liskov and SN Zilles, ‘Specification Techniques for Data Abstractions’ (1975) SE-1 IEEE Transactions on Software Engineering 7.
Drew McDermott, ‘Artificial Intelligence Meets Natural Stupidity’ [1976] ACM SIGART Bulletin 4.
Mary Midgley, ‘Philosophical Plumbing’ (1992) 33 Royal Institute of Philosophy Supplement 139.
Michael Moorcock, ‘Starship Stormtroopers’ (1978) 4 Anarchist Review.
Susan Leigh Star, ‘The Ethnography of Infrastructure’ (1999) 43 American Behavioral Scientist 377.
Langdon Winner, ‘Upon Opening the Black Box and Finding It Empty: Social Constructivism and the Philosophy of Technology’ (1993) 18 Science, Technology, & Human Values 362.
JE Wiredu, ‘How Not to Compare African Traditional Thought with Western Thought’ [1997] Transition 320.
On a more recent and niche note, Caroline Bertram has made available an open access data set featuring all press materials from the European Commission (DG Trade) between 1989-2025. Have fun with that, trade-oriented nerds!
Opportunities
The University of Oxford Future of Professionals (OxFOP) Online Seminar Series will host next Monday (24 February, from 12:15 UK time) a talk on “The Ethics of Explainability in Human and AI Decision-Making”.
The University of Glasgow is hiring a Lecturer in Competition Law (Research & Teaching Track), with applications due by 24 February.
AI in Society, Oxford Intersections has a call for papers on the impact of AI in the majority world. 500-word abstracts are due by 1 March.
The University of Cambridge is hiring a University Assistant Professor in EU Law, starting from 1 October 2025. Applications remain open until 2 March.
In 12 March, the EUI’s School of Transnational Governance will host a book launch for Designing Rulemaking: How Regulatory Policy Instruments Matter for Governance.
Tilburg Law School is hiring an Associate Professor in Regulation of the Twin Transition. Applications are due by 14 March.
The KU Leuven AI Summer School is hosting an essay competition on the Law, Ethics and Policy of Artificial Intelligence. Submissions are open until 14 April.
And now, another otter
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And, naturalyl, the usual lack of proofreading.
Actually making this case would require a much more nuanced analysis, of course.
But not always, of course. One can point to more sophisticated thinkers of comparative law from a variety of perspectives, ranging from Pierre Legrand’s ~postmodern~ take on legal transplants to Mathias Siems’s discussion of overfitting legal transplants. So, yes, to a certain point this comment is a strawman, albeit a popular one.