Experimental Regulations and Regulatory ­Sandboxes – Law Without Order?

Abstract

This article discusses the key methodological shortcomings of experimental regulations and regulatory sandboxes. I argue that the poor design and implementation of these experimental legal regimes have both methodological and legal implications. The deficient design of experimental regulations and regulatory sandboxes can have three adverse effects: First, the internal validity of experimental legal regimes is limited because it is unclear whether the verified results are the direct result of the experimental intervention or other circumstances. The limited external validity of experimental legal regimes impedes the generalizability of the experiment. Second, experimental legal regimes that are not scientifically sound make a limited contribution to the advancement of evidence-based lawmaking and the rationalization of regulation. Third, methodological deficiencies may result in the violation of legal principles which require that experimental regulations follow objective, transparent, and predictable standards. I contribute to existing comparative public law and law and methods literature with an interdisciplinary framework which can help improve the design of experimental regulations and regulatory sandboxes. I draw on social science literature on the methods of field experiments to offer novel methodological insights for a more transparent and objective design of experimental regulations and regulatory sandboxes.

Between risk mitigation and labour rights enforcement: Assessing the transatlantic race to govern AI-driven decision-making through a comparative lens

“…These models partially shift the responsibility onto those creating the potential risk-event and the (lower-end) regulatory prerogative onto decentralised agencies believed to be better positioned when it comes to gathering scientific evidence and ensuring contextual enforcement. 53 They are also consistent with the rules and principles of data protection, 54 which favour anticipatory and collaborative measures.…”

Substantively smart cities – Participation, fundamental rights and temporality

“…53 et seqq. AIA) seek to establish an environment in which risk-prone applications may be tested under real but controlled conditions (for a methodological critique, see Ranchordás, 2021).…”

Experimenting with co-ownership of energy storage facilities - A case study of the Netherlands

“…92.The benefits of regulatory sandboxes in developing new approaches and creating regulatory innovations are broadly discussed, see for instance: Sofia Ranchordás, ‘Innovation-Friendly Regulation: The Sunset of Regulation the Sunrise of Innovation’ (2015) 55 Jurimetrics J., 201-244; Sofia Ranchordás, ‘Experimental Regulations and Regulatory Sandboxes – Law Without Order?’ (2021) LaM; Kanerva Sunila & Ari Ekroos, ‘Regulating radical innovations in the EU electricity markets: time for a robust sandbox’ (2023) Journal of Energy & Natural Resources Law 2023, 41:1, 5-25.; Tim Schittekatte a,c, Leonardo Meeus a,c, Tooraj Jamasb b, Manuel Llorca b, Regulatory experimentation in energy: Three pioneer countries and lessons for the green transition, Energy Policy 156 (2021) 112382; regulatory sandboxes have also been proposed in other areas of the energy transition such as the development of hydrogen infrastructure and the use of hydrogen, see Saskia Lavrijssen and Blanka Vitéz, ‘Make Hydrogen Whilst the Sun Shines: How to Turn the Current Momentum into a Well-Functioning Hydrogen Market?’ (2020) CCLR; Gökçe Mete and Leonie Reins, ‘Governing New Technologies in the Energy Transition – The Hydrogen Strategy to the Rescue?‘ (2020) 3 CCLR; Saskia Lavrijssen & Max Baumgart, Exploring regulatory strategies for accelerating the development of sustainable hydrogen markets, Journal of Energy & Natural Resources Law (Lavrijssen & Baumgart, 2023). …”