Guideline III: The Types of New Technology Disputes are Unforeseeable

The final guideline that I offer here for a general theory of law and technology is that decision-makers must remain cognizant of the limits of their knowledge about new technology and the unforeseeability of what new issues will arise in the future. Particularly in initial stages of technological development, it is inevitable that legal disputes cnncerning a new technology will be handled under preexisting legal schemes. In early stages, there often will not be enough information and knowledge about nascent technologies to develop or modify appropriate legal rules, or there may not have been enough time to establish new laws or regulations for managing the technology. There also often is an inclination to handle new technology disputes under existing rules; this is usually the easiest response both administratively and psychologically. Not surprisingly, however, preexisting legal structure may prove a poor match for new technology.

The regulation of biotechnology serves as a one example (among many). As the biotechnology industry developed in the early 1980s, the federal government determined that bioengineered products generally would be regulated under the already-existing statutory and regulatory structure. The basis for this decision was a determination that the process of biotechnology was not inherently risky, and therefore that only the products of biotechnology, not the process itself, required oversight. This decision has proven to be at least questionable. As a result of this decision, biotechnology products are regulated under a dozen statutes and by five different agencies and services. Experience has revealed gaps in biotechnology regulation; inefficient overlaps in regulation; inconsistencies among agencies in their regulation of similarly situated biotechnology products; and instances of agencies acting outside of their areas of expertise. I will not go into the specific problems in this post; they are discussed comprehensively in an earlier article.

The admonition to be aware of what you do not know and to recognize the limits of foresight is clearly a difficult one to follow. This guideline highlights the need for legal regimes governing new technologies to be flexible and reveals that it should be anticipated that preexisting legal regimes may run into problems when being used to govern technology that did not exist when the regimes were created. A leading current candidate for application of these understandings is the management of nanotechnology.

I will conclude my posts by responding to a potential critique of these guidelines generally: that the guidelines describe a general legal theory, one not limited to law and technology. The suggestion to consider the legal basis for existing doctrine before extending it to new application, for instance, is appropriate for all manner of legal decisions. There are two broad reasons why the theory offered here is one particular for law and technology. First, certain of the guidelines are only applicable to law and technology issues—for example, that legal decision-makers should not let their amazement with new technology overrun their legal analysis, or that legal regimes developed prior to the advent of a technology often reveal gaps and other problems when applied to future technology issues. Second, for the guidelines that do have significant general application, the interaction of technological development and the legal system renders the guidelines particularly apposite for resolving new technological disputes. Determining the basis for legal constructs before extending them does apply in many situations, but the nature of technological advance means that this consideration is a ubiquitous concern for handling new legal disputes caused by technological advance.