Transnational Legal Technologies Regulating Infrastructures-as-Regulation

Infrastructures of and for globalization are not governed by a comprehensive legal framework. Global commitments to the liberalization of trade in goods and services in bilateral, regional, and megaregional free trade agreements and the WTO regulate economic flows, but only to a very limited extent do they regulate the underlying facilitating physical, informational, and digital infrastructures. Rather, different legal and institutional technologies are being used for the funding, ownership, operation, and interaction of these infrastructures. Understanding these mechanisms—often private and public-private—is critical to analysis of infrastructures-as-regulation, because infrastructures’ social-ordering power is enabled, steered, shaped, and limited by them.

Infrastructure Institutions: Democracy, Dictatorship, and Corporation

This paper investigates three models for subway building: New York City, Shanghai City, and Hong Kong. It argues that the NYC subway suffers from too much democracy, allowing for contestation between the NY city and state governments, different interest groups, and other stakeholders. In the Shanghai model, the city government centralizes power and resources and can extend its subway system at a very rapid pace. But it also runs the risk of overstretching the city’s finances. In the Hong Kong model, the Hong Kong Metro operates as a market-oriented corporation with a centralized decision-making process. Importantly, the Hong Kong government grants Hong Kong Metro the rights over land above and below the ground, which enables the corporation to capture the value added by a succesful subway system. The match of power and responsibility and the internalization of costs and benefits to decision-makers holds major lessons for democracy and capitalism in infrastructure-building.

The Ordering Power of Digital Infrastructures and Their Legal Regulation

Physical and informational infrastructures are increasingly enmeshed with digital infrastructures, associated flows of data and analytics, and new forms of digital power, competition, and control. Enhanced digitalization and connectivity of infrastructures can change the ways infrastructures regulate and how law might regulate infrastructures. Digital infrastructures themselves have major regulatory effects that have long been conceptualized under the idea that “code is law” but the transnational dimensions of this insight have been largely overlooked. In the early 21st century, global digital economy companies have emerged as the major drivers and governors of the digital world. The extent to which public law is able to respond to exponential, permission-less, and easy to scale digital innovation has major implications for global governance, equality, and democracy.