Signing off

Just a short post to thank everyone for such excellent comments; much to think about! Hope everyone has a wonderful festive season!!

Distinguishing law and scientific change

Changes in scientific understandings are generally considered as difficult to foresee as changes in technology. Our understanding and perceptions of the natural world change over time, often in revolutionary ways. Scientific and technological change are closely related and sometimes hard to differentiate. For instance, improvements in our understanding of biology, and in particular the process of fertilization, facilitated the invention of in vitro fertilization and other reproductive technologies. Conversely, most scientific experiments could not take place without the tools created by technologists.

Nevertheless, the types of legal problems that are most closely related to changes in scientific understanding differ from the types of legal problems generated by technological change. Changes in our understanding of the world may alter policy focus (for example, by altering our understandings of what causes both advantage and harm); changes in technology alter what forms of conduct are practicable (thus changing how we might cause advantage or harm). Scientific change can shift the meaning and usefulness of categories, altering the utility of distinctions made in legal rules. In the case of technological change, the difficulty tends to be in the inclusion or exclusion from a particular category of a new form of conduct, rather than the coherence of the category itself.

The distinctions between the nature of legal problems generated by technological and scientific change are not only technical, but have important practical implications. We can talk about technology-neutral rules, meaning either rules that do not arbitrarily distinguish between different means of achieving the same outcome or rules that are resistant to the sorts of problems generated by technological change. An understanding of the nature of legal problems that result from technological change can help explain what technology-neutral drafting involves. Yet one hears no demands for scientifically neutral rules. This is not because one cannot imagine a rule that failed to differentiate between scientific possibilities. The rule “do not do anything that harms the environment,” leaves an interpreter to decide whether the manufacture of certain substances, thought by some to promote global warming, would be prohibited. The reason is rather that scientific neutrality offers less social benefits than technological neutrality. It is one thing for the government to say, “here is what we wish to achieve, do so in any way you can” and another for it to remain neutral on knowledge claims. Technological neutrality seeks to encourage positive technological change by at least remaining neutral to the possibility of new ways of achieving the same ends. It is extremely unlikely that scientific neutrality would lead to better science. Rules tend to be based on both current understandings and existing possibilities, but not in the same way, and not with the same implications.

Distinguishing law and changes in information

Another way in which a theory of law and technological change could be broadened would be to include all changes in social knowledge. Knowing how to achieve particular ends through technological means is but one type of knowledge. There are various other forms of social knowledge, including information about current events and scientific knowledge. Like technology, social knowledge evolves over time as new things are learnt and outdated or erroneous notions are discarded. It is therefore arguable that limiting the scope of inquiry to changes in one type of knowledge (being knowledge of means to extend human capability) is arbitrarily narrow.

Just as technological change can render legal rules uncertain, over-inclusive, under-inclusive or obsolete, so can acquiring new information. In particular, rules may become obsolete once it is discovered that they were based on assumptions since proved false. It is easy to imagine ordinary instructions that one might wish to retract had one known all the facts. Some familiar ones include: “drop everything and come here” addressed to a person holding a baby in the bath, “shut the door” spoken by a superior who did not see the CEO approaching, and “buy a packet of curry powder” where the speaker did not realize that the price had recently escalated significantly. These examples suggest that there is nothing special about the legal problems that arise as a result of technological change - all changes in information available to lawmakers may create incentives for law reform.

But the everyday nature of the examples obscures an important difference between rules based on outdated technology and rules based on partial ignorance of circumstances. In formulating legal rules, legislators and administrators have the option to devote significant resources to ascertaining the truth of the facts on which the new rules are based. While they might devote similar resources to futurist predictions of technological change, such efforts are unlikely to prove fruitful. Therefore, technological change is likely to have a more significant impact on law than acquiring additional information on the current state of affairs. If Congress were to pass a law based on a mistake as to present facts, obviously that law could be criticized accordingly, but the problems are not on the same scale. They also give rise to a different type of critique - lawmakers that misconstrue the facts might be thought careless, but lawmakers are not criticized for failing to anticipate technological change, only for failing to respond promptly after the change has taken place.

I’ll move onto scientific change next post.

Distinguishing law and changes in attitudes

Changes in behavior are not the only example of social change - there are also shifts in social and cultural beliefs and practices. Although such shifts can create pressure for law reform, like behavioral change, they tend to be more gradual. Attitudes towards law reform of this type are also different. The shifts prompted by the women’s and civil rights movements are reflected in the repeal of discriminatory laws and the enactment of laws prohibiting certain forms of discrimination. However, unlike technological change, reformers rarely argued that the law had ceased to be good law because of social change. Instead, they usually argued that the law was alw`ys bad and all that has changed is the social awareness of how bad it was. For example, few would argue today that the legal subordination of African-Americans was ever justified. Legal responses to technological change are not perceived in the same way. Few would suggest that laws regulating railroads were desirable before any track was laid or that uncertainties regarding the identification of the mother of a child conceived in vitro needed to be resolved before the separation of gestational and genetic motherhood became a technical possibility. Therefore, although changes in belief, like technological changes, generate reasons to change the law, the reasons are of a different type. Changes in the law are not justified on the basis of the fact of social change, but rather on the basis of general principles such as justice and fairness.

Distinguishing law and behavioral change

As noted in my previous post, technological change has an impact on existing legal rules - enhancing uncertainty, making them over-inclusive or under-inclusiveness, and rendering them obsolete. Although changes in what people do, as well as changes in their capacity, have the potential to raise these issues, most social change has less of an impact on law than technological change. My goal in this post is to explain the benefits of developing a theory of law and technological change rather than a more general theory of law and behavioural change.

Technological change is usually more difficult to foresee at the time a law is drafted. Of course, a lawmaker might choose to ignore future possibilities or seek to suppress them; for example, a lawmaker might wish to restrict work on Sundays despite the fact that religious diversity in their society is increasing. A lawmaker might not have the time to craft laws that can deal with every hypothetical. Nevertheless, a lawmaker is less likely to be caught by surprise by mere changes in behavior. The fact that most behavioral change is gradual, and is often subject to a counter-trend, means that debates around law and social change can be distinguished from the reaction to technological change.

The special relationship between legal problems and technological change can be seen by examining the timing of legal problems arising from a combination of technological and behavioral change. Changes in techniques of reproduction (such as artificial insemination or in vitro fertilization) will usually be faster than related changes in social attitudes towards reproduction. Laws may be needed to control a type of activity (such as human reproductive cloning) well before it becomes accepted socially, if it ever does. Other legal problems, such as uncertainty and poor targeting, are likely to affect early users of a new technology. In the context of in vitro fertilization, the first case considering the consequences of harming an embryo arose from conduct in 1973, about five years before the first child conceived in vitro was born. Early cases dealing with the nature of railroads within the law of property and contract arose well before railroads became a regular means of transporting persons and goods. The potential for legal problems from technological change comes before full social acceptance and diffusion of the technology, with resultant social impacts. Of course, once a technology becomes widely accepted and used, any legal problems associated with that technology will become more urgent.

The fact that technological change poses special problems is reflected in metaphors of the law’s failure to keep up technology. While technological change is not as sudden as might be imagined (it takes time to move a new product or process from development to invention to innovation to dissemination), it is usually speedier than social change and thus prompts more urgent calls for the law to “catch up.” Judges usually feel more comfortable updating the law in light of technological change as compared to social change, perhaps because it is more easily perceived as objective. While some social changes, such as an outbreak of war or disease, can be as sudden as technological change, they raise very different (and quite specific) legal issues. These differences make it worthwhile to consider legal responses to technological change separately from the broader topic of legal responses to behavioral change.

Recurring dilemmas

Thank you for the introduction Gaia! Being here in Australia, I am probably a bit out of kilter on the time zones, but hopefully I haven't kept you waiting too long.

I want to begin by introducing my theory of "recurring dilemmas" - the idea that the "same" legal problems are occurring in different technological contexts. Taken at a sufficiently high level of abstraction, problems discussed in the context of railways, genetic testing, computing, the Internet, nanotechnology, and so forth can be grouped into the following categories:

1. The need for special rules to deal with a new situation;

2. Uncertainty as to how the law applies to new forms of conduct, in particular:
(a) uncertainty as to how a new activity, entity or relationship will be classified;
(b) uncertainty where a new activity, entity or relationship fits into more than one classification, so as to become subject to different, conflicting rules;
(c) uncertainty in the context of conflicts of laws;
(d) uncertainty where an existing category becomes ambiguous in light of new forms of conduct;

3. Over-inclusiveness and under-inclusiveness (where the correspondence between the language of rules and their objectives decreases)

4. Obsolescence, where:
(a) conduct regulated by an existing law is no longer important;
(b) a rule can no longer be justified; or
(c) a rule is no longer cost-effective.

This does not mean that all technologies raise problems in every category, only that for most "new" legal problems we have seen them before in a different guise.

During the remainder of my week, I want to demonstrate that technological change has "special" consequences for law - it generates legal problems of a different type to, for example, scientific change or ordinary changes in behavior.

Introducing Lyria Bennett Moses

It is my great pleasure to introduce this week's presenter: Lyria Bennett Moses. Lyria is a Lecturer at the University of New South Wales Faculty of Law in Australia. Prior to joining the faculty at New South Wales she was an Associate in Law at Columbia Law School.

Lyria is completing her JSD (doctorate) at Columbia Law School on the topic of law and technological change. Her most recent article: Understanding Legal Responses to Technological Change of In Vitro Fertilization was published in the Minnesota Journal of Law, Science and Technology. Lyria has received an LL.M. from Columbia Law, School, an LL.B. from the University of New South Wales and a BSc (Hons) from the University of New South Wales.

I am personally delighted that Lyria is participating in this symposium. Lyria and I met in a conference organized by Jim Chen and Susan Wolf at Minnesota Law School. We discovered that we have both been living in New York and working on closely related dissertation projects. Unfortunately, it turned out that Lyria was just about to leave New York to join the faculty at New South Wales in Australia. This virtual symposium has finally given us the opportunity to have the conversation we never got a chance to have when we were both living in the same city. I very much look forward to Lyria's posts!

Commercial Privacy on the Internet and Diffusion Characteristics

We have little privacy on the Internet. Commercial companies collect our personal information. Their goal is to tailor advertising that will suit our individual tastes. My study showed that despite public awareness of the privacy threat, we now have more cookies and spyware than ever before. At the same time, the diffusion of Internet technology is unaffected. Can diffusion characteristics help resolve this privacy-diffusion paradox, where a privacy threat increases, yet people who claim to care about their privacy keep using a technology?

I believe two diffusion characteristics made the Internet vulnerable to this paradox and may make other technologies that share these qualities susceptible to the same paradox. First, the Internet is characterized by a critical mass point quality. This characteristic is prevalent among interactive technologies. A critical mass of people needs to adopt them before they are of value. For example, the telephone was far less useful before there were many people to call. Once the critical mass point is reached the rate of diffusion accelerates. At that point a technology is less likely to be affected by a privacy threat. It is less likely to be abandoned because of the threat. When the critical mass point is reached and diffusion accelerates, social norms become quickly entrenched.

The Internet reached its critical mass point in 1990 with 4 million users worldwide. The privacy threats appeared around the mid-1990s at a time of rapid diffusion, and non-privacy norms became quickly entrenched.

The second relevant diffusion characteristic is decentralization. The entrenchment of non-privacy norms is also enhanced where a technology is decentralized. Where a technology is decentrally diffused all users can re-invent it. In the case of the Internet, many users could act to develop privacy threatening tools, such as cookies. This exacerbated the entrenchment nf non-privacy norms.

I suggest that where a technology is characterized by a critical mass point and decentralized diffusion the window of opportunity for intervention is much narrower. Privacy protection, whether through technological design or legal rules, is likely to be effective earlier before social norms are entrenched.

My week is over, and I ran out of time to explore the last point regarding the timing for privacy protection. For readers interested in the full argument - it can be found here.

Preventive, Non-Triable and Centralized Technologies: Policy Implications

Genetic Discrimination is rare, yet fear of discrimination inhibits the diffusion of genetic testing. Is there a way to resolve this paradox? Could we prevent other technologies from being caught in this problematic situation, where individuals are afraid of a minor or non-existent privacy threat and, therefore, refrain from using an important new technology?

Privacy regulations can be grouped into three categories according to their effect on individuals' risk perception: 1) a decisive and express restriction on uses of a technology that threatens privacy; 2) a hesitant stance usually comprised of partial and inconsistent restrictions on uses that threaten privacy; and 3) a decisive and express pronouncement not to restrict uses of the technology in order to protect privacy. The current approach to genetic discrimination falls into the second category. Legal protection against genetic discrimination is partial and inconsistent. This approach fails to alleviate privacy concerns.

As explained, Genetic testing was vulnerable to the paradox because of two diffusion characteristics. First, genetic testing is a preventive technology - it aims at helping prevent unwanted future events. Second, it is non-triable. Genetic testing cannot be experimented with - the testing is usually a one-time event.

I suggest that where a technology is preventive and non-triable, regulators should select the first approach, implementing a decisive and express restriction on uses that threaten privacy. This approach would be more effective in influencing risk perception and encouraging individuals to use the technology. Specifically, in the case of genetic discrimination, there has been a lot of talk about the need for a comprehensive federal genetic discrimination statute. I believe this statute is definitely needed. However, it is not needed to prevent genetic discrimination. It is necessary to influence individuals' risk perception and encourage them to test.

The third relevant diffusion characteristic is the centralized nature of the technology. Genetic testing is centrally diffused by the medical profession, particularly by genetic counselors. Currently, genetic counselors play a major role in spreading fears of genetic discrimination. Where a technology is centrally diffused intervention measures would be most effective when targeted at the group that diffuses the technology. In this case, education measures on the actual scope of genetic discrimination and on the type of legal protection measures available are likely to be more effective if targeted at genetic counselors instead of the general public.

Diffusion Characteristics and the Genetic Discrimination Paradox

People are very concerned about genetic discrimination. So are genetic counselors who are spreading the fears. In the paper I examined empirical data regarding genetic discrimination and was very surprised to discover that, in fact, genetic discrimination is rare and if anything it is on the decline. At the same time, although little genetic discrimination is taking place, individuals are extremely afraid of discrimination and, therefore, are deterred from testing (you can find my analysis of the data here). Hence, the genetic discrimination paradox: Genetic discrimination is rare, yet the diffusion of genetic testing is inhibited due to fear of discrimination.

The question I explore is what is it about genetic testing as a technology that made it vulnerable to this paradoxical relationship between privacy protection and diffusion? I believe two diffusion characteristics made genetic testing susceptible to this paradox, and suggest that other technologies that share these characteristics may also be vulnerable to the same paradox.

The first diffusion characteristic is the preventive nature of the technology. Preventive technologies are used to prevent unwanted consequences. The rewards from the use of preventive technologies are often delayed in time or may never occur. The benefits are also relatively intangible. For these reasons, people are less likely to adopt preventive technologies. Genetic testing is a preventive technology. For example, let us take a woman testing to see whether she carries the breast cancer genetic mutation. At most, she will receive the bad news that she is a carrier of the mutation. She still may be unable to prevent the disease.

The second diffusion characteristic is the non-triable nature of genetic testing. When a technology is triable -- can be experimented with on a limited basis -- the risk of uncertainty accompanying the new technology is reduced. Genetic testing is non-triable because for most people genetic testing is a one-time event. An individual is likely to undergo testing for a disease that is prevalent in his family.

Preventive and non-triable technologies have reduced adoption rate and tend to exacerbate privacy threats. First, due to the slow diffusion rate, users of these technologies are early adopters. Research shows that early adopters are more affected by value threats, such as privacy threats, than later adopters. Second, a privacy threat particularly deters individuals from adopting a technology where they are already resistant in the first place due the technology's non-triable and preventive nature.

So it appears that the preventive and non-triable nature of genetic testing made it vulnerable to the paradox. I suggest that regulators of new technologies should look out for other technologies that share these characteristics because they may also fall prey to the same paradox.

Technological Diffusion Characteristics as a Policy Tool

I would like to thank Frank for the introduction and for his intriguing posts last week. This week I will present a paper that looks at the relationship between privacy and the diffusion -- the adoption -- of two new technologies: genetic testing and the Internet. The paper seeks to promote the project of conceptualizing a general theory of law and technology in two ways:

First, throughout history new technologies repeatedly destabilized the value of privacy. Examples are ubiquitous and wide-ranging, including the camera, the birth control pill and computer databases. I propose here that there is a relationship between the technological characteristics that affect a technology's diffusion process and the type of privacy controversies that evolve. I suggest that by focusing on diffusion technological characteristics (for example, whether a technology is centrally diffused or decentralized) we could accomplish two goals. We could develop tools that would help us predict in advance which technologies are going to create certain types of privacy issues. We could also develop principles that would formulate policy guidelines for resolving specific techno-privacy controversies.

Second, I chose two technologies that are rarely studied together: genetic testing and the Internet. My goal was to show that helpful insights can be drawn by taking a broader view that incorporates technologies, which seemingly have little in common.

I am going to focus in the paper on two case studies: genetic discrimination and commercial privacy norms on the Internet. In both cases I have used empirical data to assess how much privacy we currently have and how the diffusion process was affected. In each case study I identify the diffusion characteristics that affect the privacy result and then discuss how diffusion characteristics can be incorporated into the decision-making process.

If anyone is interested in a preview or further substantiation of the week's posts, you can find the full paper here.

Introducing Gaia Bernstein

I am honored to introduce this week's blogger, Associate Professor Gaia Bernstein of Seton Hall Law School. Professor Bernstein’s scholarship focuses on the inter-relations between technology, law and society. She has recently presented at leading conferences in the law & technology field, including LawTech at MIT and Vanderbilt's Evolutionary Analysis in Law Conference.

Professor Bernstein has examined the diffusion processes of new technologies, including both medical and communications technologies. Her teaching and research interests are in the areas of intellectual property, law and genetics, Internet law, information privacy law and reproductive technologies.

Prior to joining the Seton Hall faculty in 2004, Professor Bernstein was a fellow at the Engelberg Center of Innovation Law & Policy and at the Information Law Institute at the New York University School of Law. Her degrees include: a J.S.D. from the New York University School of Law, an LL.M. from Harvard Law School, a J.D. (Intellectual Property concentration with Honors) from the Boston University School of Law, and a B.A. in Psychology and Political Science (magna cum laude) from Tel Aviv University. Professor Bernstein practiced law at Skadden, Arps, Slate, Meagher & Flom LLP in New York and at S. Horowitz & Co. in Israel.

Finally, I wish to thank Professor Bernstein, on behalf of all the participants, for developing both the overarching idea for this symposium, and refining its particular form. She was the organizer of the Law & Society Panel where this idea originated, and she has worked tirelessly to bring together a diverse group of scholars to make this project a reality. We're all indebted to her vision, persistence, and exceptional contributions to the law & technology field. I look forward to her posts.

Wrapping Up...For Now

I wanted to do a couple more posts last week, but I'm afraid the end-of-semester rush swept away those aspirations. I just want to take this opportunity to thank all the commenters for your critiques, elaborations, and suggestions. I've learned a great deal, and I think we've collaboratively made some good inroads on defining "technology," an important first step for the symposium.

I'll be back during the break to examine how technological "arms races" may play out in the cognitive domain, and how they might be regulated. I now see just how different are the issues raised by potentially "optimized emotion" (a challenge to authenticity and moral judgment), and cognitive "doping" (ala Art's example of nontherapeutic Ritalin use, which raises more traditional distributional and efficiency concerns). Teasing out those differences should prove an interesting project.

But for now, let me sign off, and cede the stage to Gaia Bernstein, whom I'll introduce in the next post.

Two Relationships Between Technology and Values

In many of my previous posts, I have assumed there are human values both independent of technology, and capable of providing benchmarks against which to measure the value of technological change. But technology itself often affects human values. I think some of these effects are crucial to any ideal of progress, but others threaten its very possibility. Here's a preliminary classification:

1) Technology that gives us a better understanding of the world and ourselves: Here, technology can play a crucial role in revealing to us the partiality or flat wrongness of our assumptions. The telescope revealed the shortcomings of a geocentric worldview, occasioning all manner of responsive revisions in elite and popular thought. Philosopher Charles Taylor would call such breakthroughs, and many of their social repercussions, "epistemic gains," which permit us a clearer and better view of the world and ourselves.

2) Technology that blunts or otherwise obscures our understanding of the world and ourselves: As Joel Garreau has argued, humans beings are not merely the authors of technological change, but also its objects, to an extent barely imaginable in earlier times. The convergence of genetics, robotics, information technology and nanotechnology (GRIN) has radically altered our sense of the possible in the realm of self-manipulation.

I'd like to focus on one angle here: the potential for "cosmetic pscychopharmacology" to dampen or reverse negative emotional states. (I focus on the term "cosmetic" to distinguish between the therapeutic alleviation of abnormal states (such as depression), and the enhancement of emotion to the point of feeling "better than well." So "cosmetic" is meant to designate, not the triviality or superficiality of the intervention, but rather, how different it is from classic methods of restoring health to a norm.)

On a purely individualist and hedonist account of well-being, we should welcome such a development--bring on the soma! But if we share Martha Nussbaums's account of emotions as judgments of value, a great deal is lost here. The technology may well have "extended human capacity," but for what end? And, more importantly, has it diminished the possibility of our rightly discerning our ends?

To bioethicists like Carl Elliott, using drugs to alleviate mild alienation may lead to self-betrayal, since intuitions about the worth or worthlessness of forms of life around us are constitutive of our identity. Peter Kramer counters that current drugs don’t dispatch such intuitions, but only relieve the negative affect they generate in those who hold them. But this response does not begin to address the social concerns raised by future technological interventions.

Suddenness, Commodification, and Technology

I just want to quickly back up Lyria's post on the definitional issues here by noting the importance of "suddenness" and commodification to a theory of law and technology. One of the primary rhetorical tropes of opponents of regulation is to put all manner of social change on a continuum and say "See, we've been doing X for years, this new technology just lets us do it more quickly." For example,

Genetic engineering is framed as just a faster version of selective breeding (in the agricultural context) or assortative mating (in the human context).

Cognitive enhancement is viewed as a more efficient version of education. (As Bostrom & Sandberg put it (echoing Balkin), "Much of what we learn in school is 'mental software' for managing various cognitive domains: mathematics, categories of concepts, language, and problem solving in particular subjects.").

Along these lines, I've sometimes heard that the equality-eroding effects of technologies I've focused on are trivial in comparison with social sources of inequality. I like to think of this line of thought as "complacent continuumism" (CC). On the CC view, technology is just one more way of accomplishing ends that would once have been attained via "clunkier" cultural or social methods.

I think the CC view is wrong because technology is often far more sudden, more effective, and more commodifiable than social or cultural methods of accomplishing ends. In the case of cognitive enhancement, many educational institutions have made a point of assuring some kind of equality of access. Have we any guarantees that "smart pills" would come with similar assurances? Moreover, educational gains in ability come very slowly in comparison with potential chemical interventions. There are more opportunities to regulate, more "pressure points," more cultural traditions of access, in the case of educational institutions, than in the case of their potential chemical/genetic supplanters.

Definitions

I think it is incredibly important when discussing law and technology (or some specific issue such as technology's impact on equality) to be clear about definitions. In my own work, I tie technology to human capacity (so a change in technology is the ability to engage in some new form of conduct). This means that technological change is what gives rise to the possibility of new entities, new objects and new relationships. THAT is what makes "law and technology" interesting. If law limits what actions we may perform, what objects we may create and use, and what relationships are recognised - then technological change inevitably generates issues for law.

Imagine a graph with "people/groups" on one axis and "conduct" on the other. Shade it according to your current understanding of what different people are permitted to do/prohibited from doing (use greys for uncertainty). [Don't actually do this, by the way, it would take more than one lifetime - just imagine doing it]. Now add some new set of activities to the "conduct" axis. No surprises that a bunch of new questions come up - if we map existing legal rules onto the new section of our graph - do we get more uncertainty/grey patches, do the results sometimes jar with what are felt to be the goals and purposes of the rules being applied, should the default "permission" where no existing rules apply be changed to "prohibition" in some circumstances, and so forth.

One can, of course, define technology more broadly. In philosophy, technology is commonly equated with what I would call "technique." In this sense, everything from corporations, to bureaucracy to law itself is a "technology." I have no problem with this as a definition of technology (and the extended definition leads to some interesting philosophical debates) but I am not sure it is helpful in answering most "law and technology" questions. It seems to me it collapses into a debate about everything. Of course, the problem of law as a technology/technique and the over-legalisation of society (as part of the hyper-rationality/technicality of the modern age) raises interesting questions in its own right, but it seems to me they are different questions (although I know Kieran would disagree with me here and look forward to his comments accordingly).

Returning to Frank's theme of technology and inequality: If technology is understood more broadly as including technique and hence legal devices such as contracts, corporate law, etc, then the debate is reduced to whether law, social and socio-technical structures give rise to inequality. The answer must clearly be "yes" - after all inequality is observable within most societies and in the world as a whole.

So, what can my suggested definition offer Frank's discussion of technology and inequality. I think it is this. New technologies mean new (physical) possibilities. To steal Frank's example, humans can now make themselves taller. This creates the possibility of a new "arms race." There are of course arms races that have little to do with technological change understood in my narrower sense (for example, getting richer itself). But new possibilities often create new choices. Should this type of arms race be encouraged? - Should such drugs be patentable, Should government R&D funding be used on creating/enhancing such drugs, Should the drug be banned? Should it be controlled or limited to particular situations - if so how (private ethical rules of the medical profession, government regulation, public health insurance coverage only available in some situations, etc.)? As opposed to background questions about equality (how ought taxes be structured, what welfare services are available, should we convert to communism etc.), the issues that arise upon technological change are in some sense "new" or at least new at some stage of technical development. Before the first human enhancement technology, there was no real need to consider the possibility of restricting patentability to products in such an area. Before human growth drugs, there was no need for a law limiting intervention to certain situations.

We need a theory of law and technology (or, in Frank's case, a theory of legal responses to situations where new technology risks enhancing inequality) because we always need to be ready to respond to issues as they arise. It helps to recognise problem-types (eg arms races) so that we can recognise the problem and respond appropriately as and when it arises.

Why Focus on Technological Change?

The critics have arrived! Mike Madison at Madisonian offers two sources of skepticism about the development of a general theory of law and technology:

One is pragmatic: It seems to me that there needs to be a working definition of “technology” (as opposed to science, on the one hand, and as opposed to the arts, and/or the liberal arts, on the other hand), and there also needs to be a working definition of what counts as a “new” technology. What differentiates a theory of law and new technology from a theory of law and evolutionary cultural change? Or, for that matter, from a theory of evolutionary cultural change?

Two is conceptual: The last decade’s worth of scholarship has been profoundly theoretical, and often ahistorical and acontextual as well. Does society benefit from more theorizing today, or do scholars need to start the hard work of excavating history and practice?

Thank you Mike for initiating the debate from the side of the critics. Let me offer some responses:

Mike brings up a very important issue that needs to be addressed at the outset: How is technological change different from other forms of transformation? In other words, why does technological change warrant a special theory of law? One potential answer is that technological change, unlike other social evolutionary processes, has a quality of relative suddenness about it. For example, compare the slow evolution of social attitudes toward homosexual couples to the quick spread of cellular phones. This retort, admittedly, does not provide a complete distinction. Other forms of change, such as natural disasters and sometimes war also share the "suddenness" quality. At the same time, technological change also differs in the way it is treated by the legal system and particularly the backward looking court system. Courts are often reluctant to change precedent to accommodate changed circumstances. Yet, they are more likely to do so to accommodate technological change. Courts tend to reckon with technological change because it is often perceived as both an independent fnrce and a change for the better.

Regarding Mike's point about the over-theorization of legal scholarship: Theorization is abundant - I agree. Yet, its focus has been primarily in the area of intellectual property, examining the creation of new technologies. The area of diffusion, that is, the adoption of technologies has received little attention. In fact, most scholarship on technological adoption is in the field of Science and Technology Studies. This research tends to be descriptive and often historical, rarely carrying any normative implications.