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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why is the term "disruption" so popular nowadays? We rarely hear about a new social commitment to guarantee access to housing, health, or education. Instead, elite media features a parade of thinkers keen on "disrupting" old institutions. Freddie DeBoer has one perspective on their popularity:
Talk of social contracts is passé in an America obsessed with technocapitalist visions of a prosperous future. The yen for “disruption,” an empty term for empty minds in empty people, makes traditional obstacles like social contracts suspect or downright pernicious. This has led to an embrace of proceduralism by those true believers who want an app economy to be the engine of capitalism. And such people rule the world.
The "disruption" proposed by thought leaders also appeals to those who think of economics as the king of social science, and methodological individualism as the only ontological orientation to rigorous inquiry:
[I]ndividualistic predilections give a cohesiveness and homogeneity to ... new ideas and inventions, actively constructing and shaping the digital environment from which [Silicon Valley thought leaders] claim to draw their inspiration. The insistence on “disrupting” our social and environmental lives; the idea that the solutions inspired by and enabled by the Internet mark a clean break from historical patterns, a never-before-seen opportunity – these mean that the only lessons to learn from history are those of previous technological disruptions.
The view of society as an institution-free network of autonomous individuals practicing free exchange makes the social sciences, with the exception of economics, irrelevant. What’s left is engineering, neuroscience, an understanding of incentives (in the narrowly utilitarian sense): just right for those whose intellectual predispositions are to algorithms, design, and data structures.
The economy of internet intellectuals encourages endless reworking of algorithmic, design-, and data-based thinking. As Henry Farrell has observed, "While making your way up the hierarchy [of internet intellectuals], you are encouraged to buff the rough patches from your presentation again and again, sanding it down to a beautifully polished surface, which all too often does no more than reflect your audience’s preconceptions back at them." The smiling faces at TED talks want to hear tried-and-true methods and 17-minute solutions. Woe to the skeptic who counsels there may not be any.
In the hands of a Cory Doctorow, we can see a disruption ethic of public spirited dissent. Unfortunately, the "disruptions" pursued by Silicon Valley giants (and their well-heeled consultants) often have little to do with challenging the biggest power centers in society. And why would they? As Farrell notes,
[There is a] burgeoning relationship between technology companies and the U.S. government. Technology intellectuals like to think that a powerful technology sector can enhance personal freedom and constrain the excesses of government. Instead, we are now seeing how a powerful technology sector may enable government excesses. Without big semi-monopolies like Facebook, Google, and Microsoft to hoover up personal information, surveillance would be far more difficult for the U.S. government.
Similarly, the tech leaders rely on Wall Street to convert their stock options into the cold, hard cash needed to buy other opportunities. No one's going to disrupt their meal ticket. We've seen "disruption in service of power centers" before, in health care, as J.D. Kleinke observes:
[Disruptive innovation expert Clayton Christensen et al.] claim that consumers will happily compile and circulate their health risk assessment scores in search of a good health insurance deal, adjusting their risk behavior in real time to changes in their premiums in an unfettered marketplace where payers reward full disclosure and everyone assembles and shares their online personal health record with their employer.
Who is going to make all of this happen? Who is going to disrupt health care? Christensen and colleagues contend that government is too big, clumsy, bureaucratic, political, and conflicted to innovate. Rather, the disruption miracle will be driven by two stakeholders: large vertically integrated payer/providers, and large corporate employers.
As in health care, in tech circles the disruption talk seems focused on Schumpeterian creative destruction affecting everyone but giant platforms. As David Golumbia has put it, "Google and Facebook and Cisco and Verizon ... get to make the rules, and (other) individuals, even via representative governance, [are told to] keep their hands off." If "large corporate employers" must serve as the Archimedean points of the disruptive system, they are going to stand above the fray as journalists, advertisers, patients, doctors, etc. compete to the "lowest cost/highest productivity" players in their fields. Corporations plan disruption that tends to weaken the very professionals, educators, and civil society institutions capable of shaking up the corrupt and oligarchic entities most in need of disruption.
Information technology has failed to disrupt health care so far, but give it time, we are told: once market forces centralize power into large enough entities, they can impose sweeping change from above. Indeed, sometimes it doesn't even matter if market forces are behind the centralization; a Pinochet can do, in a pinch.
Thus disruption rhetoric shares a great deal with what GK Chesterton says about faith: "Question everything, and something remains a mystery; but accept one mystery, and it all becomes clear." For those mouthing the disruption mantra, all is not flux: certain large institutions will persist to organize the brutal competition forced on the mass.
That's a vision of the future that might be acceptable if we followed progressive futurists' egalitarian advice of reinforcing, rather than shredding, society's safety net. But social contracts, too, are being disrupted, and our Zuckerbergs, Schmidts, and Christensens seem little inclined to save them. When tycoons announce that all in the world is subject to the scrapheap except for their massive incomes, both conservatism and skepticism are warranted.