This blog post supplements Tech Refactored episodes 4 and 5, titled "What is Law and Technology". Listen to the discussion here.
It is past time to acknowledge “Technology Law” as a distinct field of legal study focused on how law and technology foster, restrict, and otherwise shape each other’s evolution.
While any particular device or innovation might pose interesting legal questions, there is much to learn from taking a drone’s-eye view of the ongoing and iterative relationship between law and technology. This more expansive perspective highlights recurring questions that arise regardless of the time, technology, or legal context.
Recognizing Technology Law as a distinct field will promote more thoughtful scholarship and more effective policy decisions, and studying the subject will better prepare students to grapple with emerging legal challenges.
- Distinguishing Technology Law
Like other legal subjects, Technology Law faces theoretical disagreements regarding its goals, methods, and boundaries. But those working on techlaw issues share several core concepts:
- Technology often regulates through its “architecture” insofar as it constrains or enables human conduct. It is self-executing and self-enforcing, which means that it may operate invisibly, may easily become entrenched, and empowers the architect or designer while simultaneously shifting responsibility away from these remote decisionmakers.
- Meanwhile, laws are often bolstered by markets, norms, architectures, and other practical constraints. Technological developments may erode these supports, rendering once-impractical or even impossible conduct newly easy. (Indeed, sometimes we may not realize the constraint exists until it disappears.) Some describe this as a shifting equilibrium, while others would characterize it as a change in affordances; still others would use economics terminology and describe this as lowering transaction costs. Regardless, recognizing technological development’s varied impacts on the relationship among the regulatory modalities is a core techlaw insight.
- The increased frequency or impact of once-rare conduct may raise the question of whether a difference in degree creates a difference in kind. This is often the first step of evaluating the relevance and fit of existing law, especially when technological developments scale familiar but formerly infrequent activities or grant new entities capabilities once reserved to a more limited and easily regulated set of actors.
- Technology regularly creates new types of relationships, which then need to be situated within the relevant legal regimes.
- There is something important about the speed of technological development and diffusion. Techlaw folks have varied assessments of precisely what is important about speed, however, and may argue that (1) law is often insufficiently flexible to address technological change, (2) legal institutions are often insufficiently flexible to address technological change, or (3) we must assess a technology’s rate of diffusion to best evaluate when regulatory intervention will be possible or most beneficial.
- The risk potential of technology raises particular regulatory concerns. Much of the discourse around technological regulation focuses on the difficulty of regulating in the face of uncertainty and known unknowns.
- Technological developments may consolidate formerly-separate items; this technological convergence or “hybridity” blurs established legal categories and raises distinctive regulatory convergence issues.
- Technological developments can democratize capabilities; simultaneously, they can further entrench structural power dynamics. The intersection of these issues requires a nuanced and multi-layered analysis.
In addition to these core concepts and associated substantive questions, there are a number of recurring structural techlaw questions, which arise in different time periods, with regard to different technologies, and within different legal subjects. We describe these as (1) application uncertainties, which raise the question of whether and how extant law applies; (2) normative uncertainties, which arise when the law is arguably unable to accomplish its aims; and (3) institutional uncertainties, which exist when there are questions about different regulatory entities’ relative authority, competence, and legitimacy to apply and update the law.
Technology Law is still in the process of developing a shared methodology for resolving these substantive and structural questions. But almost every framework entails working through a common set of responsive strategies:
- Can we apply extant law to new technologies, tech-enabled actors, or tech-enabled conduct? Do difficulties arise because the law is unclear, because it doesn’t anticipate a particular scenario, or because the result is normatively problematic? Do we have useful analogies, or are they all misleading?
- Do we need new law to resolve these uncertainties? If so, what form should it take? Should it be more tech-neutral or tech-specific? Focused on items or conduct?
- Who should make these regulatory decisions? Courts, looking back at what has already happened? Legislatures and agencies, looking forward? Should it be one or some combination of existing domestic or international organizations? When do we need a new institution?
Additionally, Technology Law is plagued by a number of problematic assumptions that are seldom explicitly acknowledged, much less adequately scrutinized. These include the ideas that law cannot keep up with technological change (so we might as well give up), that law cannot prevent technological change (so we might as well give in), and that technological development is either neutral (so we should regulate actions instead of items) or inherently desirable (so we shouldn’t be trying to regulate technology in the first place). These overbroad assumptions require critical assessment. Technology is neither neutral nor inevitable, and legal actors are not doomed to a reactive posture or complete irrelevance; in fact, legal actors frequently have the agency and ability to purposefully shape the evolution of both law and technology.
Of course, as with other legal fields, there are different factions within Technology Law. Some argue that we should focus on “exceptional technologies”—those which require systematic legal change—and identify their essential qualities to evaluate how to craft an appropriate governance regime; others critique the exceptionalist approach for not sufficiently considering the social and legal frameworks that make particular features of a technology salient. Indeed, some in the latter camp may dispute whether Technology Law is a distinct field or instead better understood as part of the study of law and social change more generally. Meanwhile, while we resist labeling particular technologies as exceptional, we argue that techlaw questions are distinctive. (One might even call us “Techlaw exceptionalists.”) As we have argued elsewhere, we believe the fundamental challenge of Technology Law is not how to best regulate novel technologies, but rather how to best address familiar forms of legal uncertainty in new sociolegal contexts.
- Addressing Critiques
There are two main arguments against recognizing Technology Law as a distinct field, both of which boil down to the idea that there is nothing particularly special about tech-fostered legal change.
One variant with surprising staying power is Judge Frank Easterbrook’s “Law of the Horse” critique, which maintains that extant legal subjects can adequately address technological change. Why discuss the harms created by Internet of Things devices from a techlaw perspective when we already have Torts? Why evaluate gig economy questions as techlaw questions when we already have Employment Law?
We agree with Easterbrook that there is no need to create a “Law of [X]” every time there is a furor about a particular new technology. We also agree with Lawrence Lessig’s response to Easterbook, which was that cyberlaw was worthy of study in part because it illuminates how law as a whole regulates behavior. But in debating whether Cyberlaw was a distinctive subject, both Easterbrook and Lessig missed the middle ground: Technology Law. Rather than studying the law of one technology—be it horses or the Internet—there is much to be learned from studying the relationship between technologies and law more generally.
For example, the Easterbrook critique assumes that technological shifts can be addressed within traditional subjects, but this fosters a different kind of detrimental compartmentalization. New technologies are challenging established legal paradigms across the board, and adaptive interpretations frequently render classic doctrinal standards unclear or laughably ineffective. But those attempting to resolve these recurring uncertainties within a siloed subject are doomed to start at square one with each new analysis. In contrast, recognizing Technology Law would foster the development and diffusion of common strategies for understanding and resolving such uncertainties.
Technology Law comfortably sits alongside other legal fields that deserve individualized study despite straddling conventional blackletter subjects, like Business Law, Health Law, and Environmental Law. As with these courses, considering different types of tech-fostered changes in conversation yields productive results, as we can see patterns that we might not otherwise. Comparing “horseless carriages” and “driverless cars,” for example, highlights how techlaw analogies are used to simultaneously make a new technology comprehensible and advance a regulatory narrative—an insight that is useful in understanding, say, jurisprudence regarding new communications technologies and First Amendment rights. A techlaw training will be useful to all law school graduates, as familiarity with the common questions and responsive strategies will be relevant to every legal subject that is shaped by technological developments—which is to say, all of law.
The second argument against Technology Law being recognized as a distinct legal field is that technological change is merely one cause of social change. If new technology is but one of many sources of social change, and if social change is the real driver of legal evolution, shouldn’t we instead be studying the interaction of law and social change?
This is a stronger claim, and one that we cannot refute so much as agree to disagree with. While tech-fostered change is certainly a type of social change, we contend that its characteristics and seismic social impacts are sufficiently distinct to justify studying it in isolation. Many of the elements enumerated above—that technology upends practical constraints on conduct, changes relatively quickly, and is perceived as posing a greater risk potential—contribute to a sense that tech-fostered social changes pose idiosyncratic challenges. As a result, societies—and legal actors within societies—often treat tech-fostered social changes differently. And while other drivers of social change may pose related issues individually, they rarely do so collectively or as frequently. Moreover, many of the familiar strategies for resolving legal uncertainties—including using analogy to stretch extant law, creating new law, and reassessing the regulatory regime—have techlaw-specific pitfalls and considerations. Tech-fostered legal uncertainties are distinctive in nature and treatment, which invites a more circumscribed and focused analysis.
C. Wrapping Up
Technology Law is a distinct field of legal study, characterized by its own overarching questions, guiding principles, methodologies, and theoretical disagreements. While we cannot predict which specific techlaw questions will arise in the future, a techlaw perspective allows us to identify which types of questions to anticipate. Techlaw scholarship will promote more useful policy recommendations, and techlaw training will prepare students to engage with the substantive and structural techlaw questions they will inevitably face in their careers. Not only should every law school offer a Technology Law course, the smarter ones will require it.
 The arguments in this post summarize points we explore more fully in Rebecca Crootof & BJ Ard, Structuring Techlaw, 34 Harv. J. L. & Tech. (forthcoming 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3664124; and Distinguishing Techlaw (manuscript).
 Cf. Ryan Calo, Robotics and the Lessons of Cyberlaw, 103 Calif. L. Rev. 513 (2015), https://digitalcommons.law.uw.edu/faculty-articles/23.
 Additionally, those outside the field often confuse it with Legaltech—the use of new legal technologies or tech-related provision of legal services. See Law and Technology, Law of the Newly Possible (last modified Dec. 8, 2020), https://newlypossible.org/wiki/index.php?title=Law_and_Technology.
 See Lawrence Lessig, Code Version 2.0, at 121–25 (2006), http://codev2.cc/download+remix/; Joel Reidenberg, Lex Informatica: The Formulation of Information Policy Rules through Technology, 76 Tex. L. Rev. 553 (1997).
 Lessig, supra note 4, at 342.
 Id. at 343; Jonathan Zittrain, The Future of the Internet and How to Stop It 103-17 (2008); Christina Mulligan, Perfect Enforcement of Law: When to Limit and When to Use Technology, 14 Rich. J.L. & Tech. 13, 31 (2008).
 Lessig, supra note 4, at 135.
 Id. at 343.
 See Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control the Design of New Technologies 23 (2018).
 See Madeleine Clare Elish, Moral Crumple Zones: Cautionary Tales in Human-
Robot Interaction, Engaging Sci. Tech. & Soc’y, 2019, at 40, 41–42, https://estsjournal.org/index.php/ests/article/view/260/17.
 And law, in turn, can support or destabilize these other regulatory modalities. Lessig, supra note 4, at 125–32.
 Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).
 Ryan Calo, Privacy, Vulnerability, and Affordance, 66 DePaul L. Rev. 591 (2017) (adapting the concept of affordances from perceptual psychology); Ryan Calo, Essay, Can Americans Resist Surveillance?, 83 U. Chi. L. Rev. 23 (2016) (same).
 See Justin Hurwitz, The Technological Problem of Social Cost (manuscript on file with authors); Surden, supra note 12, at 1618.
 See BJ Ard, The Limits of Industry-Specific Privacy Law, 51 Idaho L. Rev.
 See Rebecca Crootof, The Internet of Torts, Expanding Civil Liability Standards to Address Corporate Remote Interference, 69 Duke L.J. 583 (2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3342499 (arguing that just as the Industrial Revolution and associated rise of “stranger cases” fostered the rise of modern negligence and the advent of mass production and increasingly disconnected manufacturers and purchasers fostered the products liability revolution, the changing relationship between sellers and consumers created by IoT devices may foster yet another shift in liability regimes).
 See Gary Marchant, The Growing Gap Between Emerging Technologies and the Law, in The Growing Gap Between Emerging Technologies and Legal-Ethical Oversight: The Pacing Problem 19, 23 (Braden Allenby, Joseph Herkert & Gary Marchant, eds., 2011).
 See Margot Kaminski, Legal Disruption: How Technology Disrupts the Law (manuscript on file with authors); Marchant, supra note 18, at 23–24.
 Gaia Bernstein, In the Shadow of Innovation, 31 Cardozo L. Rev. 2257 (2010); Gaia Bernstein, The Role of Diffusion Characteristics in Formulating a General Theory of Law and Technology, 8 Minn. J. L. Sci. & Tech. 623 (2007); Gaia Bernstein, When New Technologies Are Still New: Windows of Opportunity for Privacy Protection, 51 Vill. L. Rev. 921 (2006).
 Roger Brownsword, Eloise Scotford & Karen Yeung, Law, Regulation, and Technology: The Field, Frame, and Focal Questions, in The Oxford Handbook of Law, Regulation, and Technology 3, 9 (Roger Brownsword, Eloise Scotford & Karen Yeung, eds.) (2017).
 See generally Paul Ohm & Blake E. Reid, Regulating Software when Everything Has Software, 84 Geo. Wash. L. Rev. 1672 (2016), https://ssrn.com/abstract=2873751 (exploring the regulatory thicket and interagency conflicts that have resulted from the embedding of software in devices across practically every industry).
 See, e.g., Jack M. Balkin, Old-School/New-School Speech Regulation, 127 Harv. L. Rev. 2296, 2297 (2014), https://digitalcommons.law.yale.edu/fss_papers/4877/ (“The very forces that have democratized and decentralized the production and transmission of information in the digital era have also led to new techniques and tools of speech regulation and surveillance that use the same infrastructure.”); Amy Kapczynski, The Law of Informational Capitalism, 129 Yale L.J. 1460, 1494 (2020) (reviewing Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019) & Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism (2019)), https://www.yalelawjournal.org/review/the-law-of-informational-capitalism (“One important ask for legal scholars of information today . . . Is to unpack how demands for ‘openness,’ ‘sharing,’ and ‘freedom’ in the internet age helped enable—or at least did not stand in the way of—the development of troubling forms of private power.”).
 Crootof & Ard, Structuring Techlaw, supra note 1; see also BJ Ard & Rebecca Crootof, Institutional Uncertainties (manuscript).
 In Structuring Techlaw, we propose and outline a three-part framework for working through techlaw questions that emphasizes our ability to shape legal evolution when responding to technological developments. This entails identifying the relevant legal uncertainty, considering the distributive effects of different stances towards technological regulation, and determining the appropriate response with an awareness of its techlaw-specific issues. Id.
 See, e.g., Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (2019) (discussing how technology entrenches social inequity); Meg Leta Jones, Does Technology Drive Law? The Dilemma of Technological Exceptionalism in Cyberlaw, 2018 J. L., Tech. & Pol’y 249, 253 https://ssrn.com/abstract=2981855 (arguing against tech determinism); Cohen, supra note 23, at 89–93 (problematizing the framing of innovation as both an unalloyed good and inevitably in conflict with regulation).
 E.g., Calo, Lessons of Cyberlaw, supra note 2, at 552, 553–58 (assessing the potentially exceptional features of robotics).
 E.g., Jack M. Balkin, The Path of Robotics Law, 6 Calif. L. Rev. Cir. 45, 46–47 (2015), https://digitalcommons.law.yale.edu/fss_papers/5150/; Jones, supra note 26, at 253.
 One differentiating element of our approach is that it emphasizes that each resolution of a techlaw question—no matter how simple or intuitive—influences the path of legal evolution. Because all technologies raise legal uncertainties, and as their resolution will impact how different legal regimes evolve and interact, we find the exceptionalist approach underinclusive.
 Crootof & Ard, Structuring Techlaw, supra note 1.
 Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. Chi. Legal Forum 207, 207, https://chicagounbound.uchicago.edu/journal_articles/1148/ (“[T]he best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses . . . Any effort to collect these strands into a course on ‘The Law of the Horse’ is doomed to be shallow and to miss unifying principles.”); id. at 215-16 (arguing against developing increasingly specialized rules in response to new technologies).
 Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501, 502(1999), https://cyber.harvard.edu/works/lessig/finalhls.pdf.
 In Robotics and the Lessons of Cyberlaw, Ryan Calo made the innovative move of applying insights developed in the cyberlaw context to regulating robotics. Calo, Lessons of Cyberlaw, supra note 2. We abstract out one additional step, to argue that the core techlaw insights, developed in any context, might be usefully applied to thinking through regulatory strategies in others.
 See James Grimmelmann, Internet Law: Cases & Problems 12 (10th ed. 2020) (arguing Easterbrook is wrong about internet law, given the many overlapping and recurring issues the internet raises across traditional doctrinal lines).
 Michael Guihot, Coherence in Technology Law, 11(2) Law Innovation & Tech. 311 (2019).
 Crootof & Ard, Structuring Techlaw, supra note 1, at 50-51.
 See, e.g., Genevieve Lakier, The Problem Isn’t the Use of Analogies but the Analogies Courts Use, Knight First Amendment Inst. (Feb 27, 2018), https://knightcolumbia.org/content/problem-isnt-use-analogies-analogies-courts-use.
 For a full-throated argument that tech-based social change is distinct from other types, see Lyria Bennett Moses, Why Have a Theory of Law and Technological Change?, 8 Minn. J.L. Sci. & Tech. 589 (2007), https://scholarship.law.umn.edu/mjlst/vol8/iss2/12/. That being said, because tech-related legal uncertainties arise so frequently—and present such a range of factual, legal, and normative questions—they provide some of the most interesting case studies for examining the relationship between social change and the law.
 See, e.g., id. at 600 (observing that “[j]udges usually feel more comfortable updating the law in light of technological change as compared to social change”).
 Crootof & Ard, Structuring Techlaw, supra note 1, at 47-77.
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