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.