Wed, 03/03/2021
This post is a summary of Episode 5 of The Nebraska Governance & Technology Center’s Podcast Series, Tech Refactored. Host Gus Hurwitz was joined by:
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BJ Ard, Assistant Professor of Law at the University of Wisconsin Law School;
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Rebecca Crootof, Assistant Professor of Law at the University of Richmond School of Law;
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Ryan Calo, Professor of Law at the University of Washington School of Law;
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Joshua Fairfield,William Donald Bain Family Professor of Law at the Washington and Lee University School of Law;
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Meg Leta Jones, Associate Professor of Communication, Culture & Technology at Georgetown University; and
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Woodrow Hartzog, Professor of Law and Computer Science at Northeastern University School of Law.
In part 1 of our two-part panel discussion of “What is Law and Technology,” our panel dispelled the common assumption that the field is about identifying what is the law surrounding the newest cool (or terrifying) technological innovation. Instead, as Ard noted, it is concerned with “how law and technology interact and foster each other’s evolution.” Jones notes that while the field has its origins in “cyberlaw,” that has really become an outmoded term as the internet and computers have become “common and expected” and have increasingly become integrated not only into evermore physical devices (the Internet of Things, or IOT), but also into nearly every facet of the human experience. What, then, are the methodologies that the field could (or should) employ? And fundamentally, what sorts of characteristics are sufficient to be said to constitute a methodology?
Referencing Thomas Kuhn, a 20th-century philosopher of science, Hurwitz suggests that what makes a field distinct (in terms of methodology) is “a common set of questions, a common language.” Alternatively, another approach might focus around a “set of formal methods that you use, and that as a cohort, you develop over time.” Too often, Hurwitz believes, legal academics take what could be seen as an “amethodlogical approach,” or at the very least, if they are employing a methodology, they aren’t explicit about it.
Hartzog wondered if maybe some elements that legal academics routinely employ could actually be thought of as constituting parts of a loose, incipient methodology within law and technology. Hartzog identified the following possible methodological characteristics: a) analogy b) measurement (what are our desired outcomes, and how do we know if we’ve accomplished them), and c) values (for example, law and economics is concerned with efficiency).
Kalo, on the other hand, has previously proposed a concrete methodology that a law and technology scholar should take in order to approach a given problem. He suggests that law and technology could serve as a comprehensive vantage point for considering regulatory regimes (broadly construed) in the same way that law and economics provides a set of tools for evaluating legal regimes (in the latter case: evaluating the costs and incentives that law creates in order to optimize efficiency and predict outcomes).
Jones sees herself as a “comparativist,” in that her method starts by identifying a technology, and then looks at how other disciplines have approached thinking about that technology. By temporarily setting aside those sets of assumptions that implicitly accompany the legal approach, Jones argues that law and technology scholars might expand upon their existing perspectives in a way that is productive. Which is not to say that she is in favor of abandoning legal approaches to understanding technology entirely. “Maybe legal constructions are more descriptive, and I think that there are a lot of framing benefits that can come out of that descriptive effort that you translate into normative steps forward, like, “how should we be framing this to make productive policy, so we don’t, for instance, leave people behind?”
Why does methodology matter? Fairfield notes that, when law and technology does try to interact with other disciplines, there are barriers in terms of methodology and approach that can make meaningful conversation difficult. For example, law naturally has more of a normative dimension than most fields, which is to say that it is more comfortable not only describing things as they there are or could be, but indeed making claims about how they should be. On the other hand, Calo notes that other fields have more concrete, standardized forms of methodology, which he has come to see as an advantage over the course of his work as a member of technological-research centers.
So given the panel's consensus that there are disagreements about the underlying methodologies of law and technology, how should the field move forward? For Hurwitz, a partial answer lies in legal scholars being explicit in the methodologies they are employing — for a variety of reasons — not least of which is it allows individuals from other disciplines to interact with and critique the work of law and technology scholars, and even make suggestions about the way law and technology methodologies might be tightened-up and improved.
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Be sure to check out the essays from each guest on this two-part episode series, also found on The Record.
Links to those essays:
The Case for "Technology Law" by BJ Ard and Rebecca Crootof.
Law and Design by Woodrow Hartzog.
What is Law and Technology? by Meg Leta Jones.
Law and Technology: A Work in Progress by Ryan Calo.
The Technology of Law by Joshua Fairfield.
Tags: Tech Refactored Review
