an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Law lives through categories; technology disrupts categories
A discussion about drones with my colleague Oona Hathaway led me to propose a simple way to think about technological change and legal interpretation: Law lives through categories, but technology disrupts categories. The problem for lawyers--and many other people besides--is what to do when technological change disrupts the categories through which we understand the social and legal world.
Legal doctrines often take the form of differentiation and division into different situations--to which different legal norms and legal solutions apply. Law divides the world into categories in order to specify which norms should apply in which situation. Legal categories, in turn, are often premised on distinctions that rest on the way we understand the world to be, what is possible and what is not possible, what is costly and what is cheap, and so on. Moreover, legal categories often reflect a balance of competing interests or principles; a balance that applies differently--for the most part--within each category.
Technological change disrupts our understanding of what is possible or impossible, what is relatively expensive or inexpensive. It makes possible or gives new incentives for activities that were either impossible or prohibitively costly. It introduces new combinations of properties or features that we hadn't imagined before. It brings new participants into systems and activities from which they had been previously excluded. It changes the balance of principles that previously justified the categories we had chosen.
Each of these changes may confound existing legal categories. Then we must decide what values are more important, and that we really want to protect, in the context of changed conditions. Categories often reflect a balance of considerations, and when we change our categories, we may have strike a new balance, which inevitably means giving up something-- often something that we would not rather have to give up.
As a result, it is difficult to say that we can simply preserve our existing values-- and the balance between conflicting values-- in the face of technological change. Rather, what change does is put values that people once imagined (correctly or not) were fairly well accommodated once again in conflict with each other. Technological change exacerbates the tensions between these values, and seems to demand from us a new accommodation, a new set of lines, and a new set of categories. This demand appears as a demand from the outside-- i.e., from "technology"--but is really a demand from inside, from our moral imaginations. Crafting a solution is difficult precisely because it disrupts existing settlements, compromises or ways of living. It may require us to sacrifice some values for others in a new set of contexts. What technology does, in short is disrupt our moral sense of propriety, and force us to imagine a new sense of propriety.
Of course, to speak in terms of "technology" doing things is apt to be misleading. "Technology" does not do things by itself. Its effects depend on the choices that people make, and the way that people apprehend, interpret, and make use of the possibilities opened up by technological change. People experiment, imagine, and try out new uses for new tools. They organize to protect their (sometimes newly discovered) interests and agendas.
The military and civilian use of drones for example, or the interfaces through which we communicate digitally were not inevitable; they did not have to happen precisely as they have. Rather, people made choices that were opened up by technological change. They took advantage of new capacities and possibilities and created a new social reality. When we say that technology disrupts law, what we really mean is that people, using the capacities and tools available to them, and using these tools to understand and imagine the world in new ways, have disrupted the social life and social norms around them. The consequences for law may often be quite dramatic. Posted
by JB [link]