History Lessons for a General Theory of Law and Technology

Thank you for the introduction Frank, and thank you Gaia and Frank for organizing this discussion. I am excited to take part in it.

I want to elaborate on a theme that has been touched on in several posts and comments: whether certain legal issues that arise as a result of technological change are recurring. Stated another way, can we frame a general theory of law and technology by studying how prior law and technology issues have been handled, and developing a set of guidelines for how the legal system should respond to future law and technology issues as they arise.

I believe that examining historic responses to new legal issues brought about by technological advance reveals that we can develop such common guidelines. Considering historic responses will not provide a complete road map for responding to each new law and technology issue—such a goal is unachievable considering the wide variety of technological change and wide variety of legal disputes—but the history lessons can offer a number of useful guidelines for how to confront novel law and technology issues. In following posts I will discuss three lessons: (1) that preexisting legal categories may not apply to new technology issues, (2) that decision-makers should not be blinded by the wonders of a new technology in deciding how to handle disputes concerning the technology, and (3) that the types of new disputes created by technological advance are unforeseeable.

These three guidelines are only intended to be examples, not a comprehensive list. I welcome any other examples. Critically, I contend that these guidelines are applicable across a wide variety of disparate technologies, even technologies that we cannot conceive of presently. In this manner, the guidelines represent one form of a general theory of law and technology.