Impact Assessment as a Legal Design Pattern—A “Timeless Way” of Managing Future Risks?

Abstract

Impact assessments are increasingly employed and debated as instruments for mitigating the fundamental rights risks associated with artificial intelligence, platforms and personal data processing. However, before their adoption in connection with technology and fundamental rights, impact assessments have been used for decades to mitigate large undertakings’ environmental and social impacts. An impact assessment is a process for collecting information to identify a future action’s effects and mitigate its unwanted effects. This article proposes that impact assessments represent a distinct legal design pattern with core elements that can be replicated in new legal contexts requiring ex-ante identification and mitigation of foreseeable risks. The tensions between diverging interests, temporality, epistemics and economics characterise this legal design pattern. The impact assessment process seeks to resolve these tensions by enabling translation between the regulator, the executor of the planned action and the stakeholders impacted by it. Awareness of the underlying patterns allows the lawmaker or the regulator to learn across diverse impact assessment models. Design pattern thinking advances research both on law and regulation by uncovering the tensions underling the design solution, as well as pattern interaction between legally mandated impact assessments and those representing other regulatory instruments. Finally, the approach raises awareness of the instrument’s shortcomings, including spheres where relying on complementary legal design patterns, such as precautionary principle, is more justified.