Law professors writing in the area of law and technology tend to focus on specific technologies. In particular, there appears to be a divide between those writing on communication technologies, such as the Internet and those writing on medical technologies, such as genetics and reproductive technologies. I think this division is not just a matter of specialization but reflects a deeper conviction that each technology is unique and should be studied on its own.
During the 1970s, for a brief time, different winds were blowing. Laurence Tribe in a book entitled “Channeling Technology Through Law” (and a series of articles) developed an approach called “Technological Assessment.” This approach undertook a broader look at assessing and regulating new technologies. Yet, in subsequent decades the study of new technologies has not followed this lead, instead it became more technology-specific.
Can we learn from our successes and mistakes in the regulation of one technology to improve our efforts in regulating or perhaps refraining from regulating other new technologies that share similar characteristics? Looking at technologies that are usually not studied together, but are currently in the midst of their diffusion process, namely genetic testing and the Internet, I have taken a broader look at the regulation of new technologies (see here and here). I believe that the role of a general theory of law and technology is an issue that warrants further discussion. In this year’s Annual Law and Society Conference, in a panel entitled “Toward a General Theory of Technology Law and Society,” Lyria Bennett-Moses, Arthur Cockfield, Frank Pasquale and I will debate the role and potential formulations of such a theory. Any thoughts on the issue would be much appreciated and of course if you are there do come and join us.
Posted by Gaia Bernstein on April 25, 2006 at 10:00 PM
Comments
I was pleased to see your post. I write just to note that your point can be generalized outside the context of law and technology. My training in academic philosophy sometimes makes me look at things from 10,000 feet. From that vantage point and looking down upon legal scholars working away in their “fields,” I am sometimes distressed to see scholars A and B fail to build off the work of scholars C and D, even though at an only slightly generalized level they are all working on the same (conceptual or normative or empirical) issues. For example, what constitutes valid and voluntary consent might be addressed by those working on rape law, criminal pleas, contract law, tort law assumption of risk, and elsewhere. But too often the insights from one doctrinal box remain in that box.
Posted by: Thaddeus Pope | Apr 26, 2006 3:12:42 PM
I agree that certain characteristics of a technology are facts in the sense that they are very specific and are unlikely to reoccur in another technology. I think, however, that some technological characteristics are more general and relevant to additional technologies. For example, certain technologies, in particular interactive technologies, reach a critical mass point from which they diffuse at a rapid rate. Rapid diffusion is relevant for timing technological or legal interventions. Knowing in advance that a certain technology is likely to diffuse quickly once it reaches a critical mass point would be helpful in forming policy decisions (I write about this in more detail in my article: “The Paradoxes of Technological Diffusion”).
Posted by: Gaia Bernstein | Apr 26, 2006 1:58:50 PM
I tend to agree with Orin’s comment. Suppose there is a new technology that kills people as its primary goal. Suppose there is also a new technology that saves people as its primary goal. Should there be a general theory that treats both the same for purposes of regulation?
It seems that more important is determining what the technology does, and finding out whether there are general areas that exist already for similar end results.
Posted by: Michael Risch | Apr 25, 2006 11:45:29 PM
Interesting post, Gaia. The difficulty with a general theory, I think, is that technology is really just about the facts. New technologies change the facts, prompting the need for new laws that reflect the new facts. As a result, a general theory of law and technology is really a general theory of how law should respond to changing facts. Does such a theory exist? And more importantly, is it needed in an important way? I tend to be a skeptic about the latter.
Posted by: Orin Kerr | Apr 25, 2006 10:20:27 PM