The Devil Is in the Defaults

Ian Kerr

Abstract


This review essay explores the notion of “shifting defaults” as discussed by Mireille Hildebrandt in her book Smart Technologies and the End(s) of Law. Although readers might mistakenly see defaults as a fleeting topic within Hildebrandt’s text, this review essay demonstrates their central significance, identifying and elaborating on fundamental characteristics of four categories of shifting defaults: (i) natural defaults; (ii) technological defaults; (iii) legal defaults; and (iv) normative defaults. The essay concludes by reframing Hildebrandt’s central question, considering whether the Rule of Law is itself merely our current legal default, and whether it could be legitimately displaced by smart technologies.


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