Friday, January 19, 2007

Guideline III: The Types of New Technology Disputes are Unforeseeable

The final guideline that I offer here for a general theory of law and technology is that decision-makers must remain cognizant of the limits of their knowledge about new technology and the unforeseeability of what new issues will arise in the future. Particularly in initial stages of technological development, it is inevitable that legal disputes concerning a new technology will be handled under preexisting legal schemes. In early stages, there often will not be enough information and knowledge about nascent technologies to develop or modify appropriate legal rules, or there may not have been enough time to establish new laws or regulations for managing the technology. There also often is an inclination to handle new technology disputes under existing rules; this is usually the easiest response both administratively and psychologically. Not surprisingly, however, preexisting legal structure may prove a poor match for new technology.

The regulation of biotechnology serves as a one example (among many). As the biotechnology industry developed in the early 1980s, the federal government determined that bioengineered products generally would be regulated under the already-existing statutory and regulatory structure. The basis for this decision was a determination that the process of biotechnology was not inherently risky, and therefore that only the products of biotechnology, not the process itself, required oversight. This decision has proven to be at least questionable. As a result of this decision, biotechnology products are regulated under a dozen statutes and by five different agencies and services. Experience has revealed gaps in biotechnology regulation; inefficient overlaps in regulation; inconsistencies among agencies in their regulation of similarly situated biotechnology products; and instances of agencies acting outside of their areas of expertise. I will not go into the specific problems in this post; they are discussed comprehensively in an earlier article.

The admonition to be aware of what you do not know and to recognize the limits of foresight is clearly a difficult one to follow. This guideline highlights the need for legal regimes governing new technologies to be flexible and reveals that it should be anticipated that preexisting legal regimes may run into problems when being used to govern technology that did not exist when the regimes were created. A leading current candidate for application of these understandings is the management of nanotechnology.

I will conclude my posts by responding to a potential critique of these guidelines generally: that the guidelines describe a general legal theory, one not limited to law and technology. The suggestion to consider the legal basis for existing doctrine before extending it to new application, for instance, is appropriate for all manner of legal decisions. There are two broad reasons why the theory offered here is one particular for law and technology. First, certain of the guidelines are only applicable to law and technology issues—for example, that legal decision-makers should not let their amazement with new technology overrun their legal analysis, or that legal regimes developed prior to the advent of a technology often reveal gaps and other problems when applied to future technology issues. Second, for the guidelines that do have significant general application, the interaction of technological development and the legal system renders the guidelines particularly apposite for resolving new technological disputes. Determining the basis for legal constructs before extending them does apply in many situations, but the nature of technological advance means that this consideration is a ubiquitous concern for handling new legal disputes caused by technological advance.


Anonymous Michael Risch said...

I agree generally with your comments, especially the need to look at history when considering new policy.

The pragmatic question I have is: What's the alternative? Sure, we shouldn't leap to apply existing principles to new technologies, because they may shake out differently - but what does that mean?

Using your biotech example, even though there is overlap and problems, should we have instead just left things unregulated? Even if it took 10-20 years for all the information to shake out?

For some of your examples, I can see the alternatives. For example, with fingerprints and DNA, we have Daubert. I'm not sure how well that extends to regulation and torts, however.

1/19/2007 10:34 AM  
Blogger Gaia Bernstein said...

I agree with the gist of your argument. But, I wonder whether we can still differentiate between principles applied in the past and find those that may be suitable at least at the outset. For example, you mention nanotechnology. There is something very similar that is happening with nanotechnology that has happened with the genetic revolution. Gene patents were awarded very early for the building blocks of genetic science, such as gene sequencing. From conversations I have had with attorneys involved in patenting nanotechnology it seems that the same is happening. Patents are awarded for the initial findings - there is a patenting rush. Isn't this an instance where we can learn something from past experience and at least be more cautious?

1/19/2007 11:11 AM  
Blogger Gregory Mandel said...

Yes, the guidelines are intended to demonstrate that we must take into account past responses to technological change in order to better understand how to respond to current and future ones. Those who cannot learn from history are doomed to repeat it.

The point of the third guideline is simply that legal decision-makers remain cognizant that how each technology will play out will likely be different, and that the preexisting legal structure may prove a poor match for new technology. I do not contend that the preexisting legal structure is always a poor match or that we must reinvent the wheel. A legal system that is flexible, recognizes the unforeseeability of new issues, realizes that new issues may not fit well into preexisting legal constructs, and which is operated by legal actors who take a measured view of the technology will operate far better in managing a technology than a system that fails to learn these lessons.

For biotechnology, the Coordinated Framework for Regulation may not have been the wrong decision in the mid-1980s based on what was known at the time. But, as gaps and inefficiencies have been revealed, it would be better if the system adapted to changes in understanding. As one example, the Framework does not mention genetically modified plants (they were barely in development at the time), but such plants have become a dominant area of biotechnology and are not handled very well under the current regulatory regime. For nanotechnology, there certainly are similarities between early nano patenting and gene patenting, and this is a useful analogy for recognizing potential problems (as an aside, the cat may already be out of the bag on early nano patenting), but we also should be aware that this analogy may not continue to hold, and that we may need to adapt our response.

1/20/2007 7:58 AM  

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