Law, Complexity, and Networks
Since my PhD I have been fascinated by the interface of complexity theory, network science, and the law. A major part of my research applies complexity’s analytical and empirical tools to diverse legal questions. Here are some examples:
Ofer Malcai & Michal Shur-Ofry, Using Complexity to Calibrate the Legal Response to Covid-19, 9 Frontiers in Physics (April 26, 2021) https://doi.org/10.3389/fphy.2021.650943 (draft available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3763376)
The global effort to fight the Covid-19 pandemic triggered the adoption of unusual legal measures that raise acute legal questions. This contrbution (part of the "Physics of Law" volume published by Frontiers in Physics) maintains that the conventional legal tools available to analyze those question fail to capture the nonlinear collective properties of the pandemic, and demonstrtaes how the law can use complexity theory to produce a more effective legal response to Covid-19. We also discuss one of our proposals (concerning "network prioritizing") in this op-ed in "Globes" Januray, 2020 (in Hebrew).
Neil Gandal, Michal Shur-Ofry, Michael Crystal & Royee Shilony, Out of Sight: A Study of Uncited Patents, 126,Scientometrics pp. 2903–2929 (2021)), https://link.springer.com/article/10.1007/s11192-020-03849-z, draft available at SSRN
Studying the patent citation network increases our understanding of innovation processes. But what about patents that receive no citations? This research focuses on uncited patents, analyzing data on all US patents issued during a period of over thirty years. We find a substantial increase in the ratio of uncited patents during the second half of that period, and discuss its possible causes and significance.
Michal Shur-Ofry & Ofer Malcai,Institutions for Collective Action and Social Contagion—Community Gardens as a Case Study, 15(1) Regulation and Governance 63 (2021), https://doi.org/10.1111/rego.12256
Does the spread of community gardens across the urban space exhibit properties of social contagion? This paper connects Ostrom's commons theory with complexity, and uses complexity's empirical tools, including fractal analysis, to examine the diffusion of institutions for collective action and to discuss law and policy implications. Some of the insights may have implications for the diffusion of additional initiatives in cities - see my op-ed on the diffusion of a new transportation platform in Tel Aviv, "Globes", September 2019 (in Hebrew).
Do states adopt legal rules like people adopt smartphones or other technological innovations? We explore the role of social influence in the diffusion of legal innovation using a leading mathematical model (the Bass model).
Michal Shur-Ofry, Are There Links Between Inventions? 240 Eynaim—The Multidisciplinary Children’s Magazine, (August, 2020)
This piece, written for a multidisciplinary children's magazine, discusses the different links between inventions, and includes insights about linear vs. nonlinear innovation, the importance of errors, interdisciplinarity, and networks (Hebrew).
Can we analyze the patent citation network to identify interdisciplinary inventions and improve patent examination and patent quality? See my proposals in Michal Shur-Ofry, Connect the Dots –Patents and Intedisciplinarity,51 Michigan J. of Law Reform 55 (2017), and my talk here.
Is innovation always linear and cumulative ? Are we all standing on the shoulders of giants? This paper focuses on innovations that involve paradigm-shifts, and innovators who step-off the shoulders of giants. Using a multidisciplinary perspective drawing on the history of science, studies of creativity, and network analysis I propose ways for IP law to better promote non-linear innovation.
Michal Shur-Ofry, Access to Error, 34 Cardozo Arts & Entertainment Law Review 357 (2016) legal rules that seek to promote innovation concentrate on the dissemination of positive knowledge. This paper demonstrates that errors, failures and negativeinformation can be equally important for innovation and progress, and considers howthe law can promote greater “access to error”.
My talk on this topic can be found here (Hebrew).
As lawyers we often aspire to draft the perfect, most detailed, contract. Using insights from complexity theory, alongside traditional economic analysis, we challenge this intuition and identify circumstances in which a certain degree of ambiguity in contract drafting may be desirable.
Can an entire legal branch can benefit from analysis through the lens of complexity theory? I discuss the potential implications of complexity theory for various IP doctrines, from patent’s non-obviousness, through trademark dilution, to the right of publicity. I also show how the lens of complexity sheds new light on the traditional theories underlying intellectual property law.
What can complexity theory teach us about cultural concentration and cultural diversity, and what are the surprising and counterintuitive implications for copyright law?
Using insights from complexity and network economy this paper explores the role of databases’ structures as means of complexity reduction and interaction. I then use this perspective to critically examine the protection afforded to elements of databases under copyright law.
I use genre theory, semiotics, and network science to highlight the role of cultural genres and television formats as means of communication and interaction, and show how this perspective can shed light on various copyright doctrines.
Success is a network phenomenon. How should this understanding, and additional insights from network science, affect the way we treat iconic works and technological standards under copyright law?
