On The Potential for a Law and Technology Theory

Thanks for the kind introduction Gaia. I thought I’d start off with a boosterish post on the potential for a law and technology theory.

What could such a theory accomplish? Could it ensure world peace? Solve ongoing scientific attempts to generate a unified field theory? Provide every hungry child with a bowl of steaming porridge? Well, maybe or maybe not …

Here’s the real potential: law and technology theory could help us to organize and make sense of the various areas of law with law and technology themes (copyright, biotech, cyberlaw, new media, etc.) to promote more fully-informed legal analysis. To assist with this organization, a law and technology theory could help us to generate common themes or general principles that run through these seemingly disparate areas of tech law. Once these general principles have been discerned, a law and technology theory could reflect back on the different areas of tech law: the theory would act as one more tool within a scholar’s methodological toolbox to promote legal analysis that strives to determine optimal social policy. At the end of the day, a law and technology theory could counter Judge Easterbrook’s view that studying technology in compartmentalized areas like cyberlaw is like studying the ‘law of the horse’ (see Frank H. Easterbrook, Cyberspace and the Law of the Horse, 11 U. Chi. Legal F. 207 (1996)). The broader perspective could help to shed insight into the whole law (or in Easterbrook’s words, “illuminate the entire law.”).

So the trick then will be to generate general principles applicable to different areas of technology law. Lyria Bennett-Moses, Greg Mandel and others have discussed these matters in different posts, and I’ll briefly touch on one possible approach. For a symposium issue on 'What is legal knowledge?', I wrote an article on Towards a Law and Technology Theory, 30 Man. L.J. 383 (2004), where I tried to set out common themes or general principles at the intersection of law and technology analysis:
First, the relationship between law and technology is complex and non-linear.
Second, the regulation of technology itself can indirectly promote interests and values (also known as ‘technology is law’, which is really just Lessig's ‘code is law’ writ large).
Third, law seeks to address technological developments that destabilize traditional interests and values protected by law (or ‘law is technology’).

In the article, I made the claim that the better analytical approach at the intersection of law and technology is to critically examine these three principles (I called this approach the ‘liberal approach’, a confusing term as it gives rise to assumptions about the political philosophy of liberalism, but I digress …). The other ‘conservative’ form of analysis—less sensitive to the ways that technology and law interact—is less helpful. I then went on to claim that the liberal and conservative approaches both get integrated into the law in different ways. The liberal approach destabilizes the law as novel or creative ways of preserving traditional interests in light of tech change become integrated in other areas of law that have not witnessed similar tech change (for example, a more flexible interpretation of offer and acceptance for shrinkwrap contracting purposes will eventually become integrated into other areas of contract law). As such, the liberal approach undermines the common law principle of stare decisis because old decisions may be less helpful as precedents for present or future cases, making it more difficult for lawyers to predict the outcome of a case when they advise clients.

But the conservative approach leads to even more instability due to the need for a later and greater ‘correction’ to attempt to recapture or preserve traditional values. By way of example, consider wiretap searches and U.S. constitutional protections against unreasonable state searches. In its first review of this issue (Olmstead in 1928), the U.S. Supreme Court ruled that wiretap searches did not involve a physical search of the home and thus did not implicate the Fourth Amendment's protection against unreasonable state searches. Justice Brandeis, in his well-known dissent, deployed more forward-looking and flexible analysis to show how a wiretap search invades privacy and potentially enables abusive state actions that, at least in the long run, would make the public less secure. For forty years, there was significant instability in this area of law until the Supreme Court reversed itself and adopted Brandeis’ views (Katz in 1967). In other words, the initial ‘conservative’ form of analysis led to significant instability until the correction took place in Katz. If this vision of the transformation of the law is accurate, it serves as evidence that the liberal analytical approach is the preferred one.

The hope is that this transformative process will help provide insight into the ways the law reacts to technological change. Because tech change can differ from other forms of social change (as Lyria discussed in a previous post), I was trying to set out a few thoughts on a law and technology theory rather than a general theory about how the law works.

If you are still with me at this point, here's my plan for the rest of the week. My next post will address the three themes identified above with respect to tax policy developments. Then I’ll follow with a post on our more recent work in this area where Jason Pridmore and I discuss how a ‘Synthetic Theory of Law and Technology’ builds on the view that we need to incorporate more critical analysis of the ways that technology change can undermine legal interests.