Foreword - Imagining the Legal Landscape: Technology and the Law in 2030
Jennifer L. Mnookin & Richard M. Re
Legal scholarship tends to focus on the past, the present, or the relatively visible, near-term future. And that’s understandable: the challenges that loom many years away often aren’t susceptible to confident claims or carefully worked out solutions. In law as in life, our biggest worries—or hopes—may never come to pass at all.
Imagining Perfect Surveillance
Richard M. Re
How would society react to “the Watcher,” a technology capable of efficiently, unerringly, and immediately reporting the perpetrator of virtually every crime? This Essay treats that speculative question as an opportunity to explore the relationship between governmental surveillance and criminal justice. The resulting argument is unabashedly fictional but draws attention to pressures that may influence the real world. For instance, the Watcher casts doubt on perfect surveillance’s ability to improve the law, supports judicial attentiveness to substantive law when reviewing rules of investigation, and suggests that legislative control might displace prosecutorial discretion. The Watcher also draws attention to the relationship between surveillance and regulatory intricacy, as well as to ways of preserving human mercy within automated criminal justice.
This Article sets forth a new way to think about the ethics and law of choosing genetic traits in future children. And it applies this framework of offspring to controversies over efforts to select offspring traits including sex, race, intelligence, and deafness using methods ranging from donor selection to embryo screening and gene editing. I adapt the lens of ambivalence that Professor Robert Burt developed in the end-of-life context to illuminate an irreducible tension between the two values at stake in selective procreation. I call these values “acceptance” of the limits found in the natural world and “control” over the limits that nature imposes. The appeal of both resonates as much at life’s beginning as at its end. The resulting ambivalence counsels a complex regime to govern selective procreation that mediates the extremes of compulsion and prohibition in ambiguous and even contradictory ways. This regime would combine legal protections for offspring selection such as public subsidies, insurance mandates, tax breaks, and malpractice actions with measures to rein in that same practice as through sin taxes, counseling requirements, advertising limits, and prenatal “choice architecture.”
Giving Up On Cybersecurity
Kristen E. Eichensehr
Recent years have witnessed a dramatic increase in digital information and connected devices, but constant revelations about hacks make painfully clear that security has not kept pace. Societies today network first, and ask questions later.
This Essay argues that while digitization and networking will continue to accelerate, cybersecurity concerns will also prompt some strategic retreats from digital dependence. Individuals, businesses, and governments will “give up” on cybersecurity by either (1) adopting low-tech redundancies for high-tech capabilities or digital information, or (2) engaging in technological regression or arrest, foregoing capabilities that technology could provide because of concerns about cybersecurity risks. After cataloguing scattered examples of low-tech redundancy and technological regression or arrest that have occurred to date, the Essay critically evaluates how laws and regulations have fostered situations where giving up on cybersecurity is necessary. The Essay concludes by proposing ways that law can help to guide consideration of when to engage in low-tech redundancy or technological regression moving forward.
Recent bills have allocated federal funding to states and localities as an incentive to adopt handheld genome sequencing devices, smooth the ongoing transition from older forensic typing methods to “next generation sequencing” (NGS), and facilitate law enforcement access to medical and recreational DNA databases. At the request of legislators considering these bills, the Congressional Research Service has prepared the below summary of DNA practices as it relates to criminal justice.
Utopia?: A Technologically Determined World of Frictionless Transactions, Optimized Production, and Maximal Happiness
Brett Frischmann and Evan Selinger
Imagine a world that is aggressively engineered for us to achieve highly desirable objectives. In this hypothetical future, technology will serve as the means for governing—or one might say, micromanaging—our world to prioritize three distinctive yet interrelated normative ends: optimized transactional efficiency, resource productivity, and human happiness.
Not since the invention that launched the entire biotech industry has a life science invention offered as much promise as the CRISPR technique for editing genes. Gene editing techniques existed before CRISPR, but they were slow, inaccurate, and expensive. The CRISPR invention is like moving from the manual typewriter—click, clack, slide across—to modern word processing.
As we stand at this remarkable threshold, what of the patent system? The CRISPR story defies traditional patent theory. Companies are racing to develop commercial applications for the technology and researchers are using the technology, even though it is not clear how or if they will obtain a license for it. Commercialization is moving forward, and not on the patent system’s timeline.
Perhaps CRISPR is the exception that proves the rule. After all, great leaps forward may never fit the day-to-day regime. But do we really want a patent system that works only for mediocrity? Shouldn’t the patent system be designed for the truly great? This Article suggests that perhaps we should be willing to move slightly away from the winner-take-all orientation of the patent system, recognizing that some aspects of compulsory licensing may better reflect the patent system as it operates on the ground. At the very least, we should focus on the ways in which the lumbering patent system fails to match the speed and the dictates of science and innovation. Just as CRISPR allows editing of human DNA, how can we edit the patent system’s DNA so that it performs to its greatest potential?
Immersive virtual reality may change the way we interact with each other. In the future, we may be technologically capable of experiencing every aspect of an interaction except its physiological consequences. So what does this mean for interpersonal violence? If virtual reality creates a strong sense of “presence,” such that virtual experiences seem comparable to their physical counterparts, can virtual violence have comparable psychological consequences to physical violence? If so, how should the law deal with such violence? Virtual reality may force us to confront complicated questions about how we define acts of violence, and how significant we find physical consequences, as opposed to the mere subjective experience of violence.
Glass Half Empty
Jane R. Bambauer
This science-fiction legal Essay is set in the year 2030. It anticipates the development and mass adoption of a device called the "Ruby" that records everything a person does. By imagining how law and society would adjust to such a device, the Essay uncovers two surprising insights about public policy: first, policy debates are slow to change when a new technology pushes out the "Pareto frontier" and dramatically changes the benefits that society can achieve at little or no cost. Second, in direct contradiction to most free speech theory and precedent, the thought experiment shows that First Amendment goals could be better served by affording the right to collect information more protection than it currently gets and giving the right to disseminate information less emphasis.
Effective management of societal risks from technological innovation requires two types of conditions: sufficient knowledge about the nature and severity of risks to identify preferred responses; and sufficient control capacity (legal, political, and managerial) to adopt and implement preferred responses. While it has been recognized since the 1970s that technological innovation creates a tension between the societal conditions supporting knowledge and those supporting control, the severity and character of this tension varies across issues in ways that inform understanding of what risks are managed more, or less, effectively and easily. Risk management has tended to be more effective and less contentious for three types of issues: those in which causal mechanisms of risk are well identified even if associated technologies are novel; those in which precaution can be strongly embedded in capital stock and bureaucratic routines; and those in which risks are imposed by scientific research rather than subsequently deployed technology. Issues for which risk management has tended to be more difficult and contentious also fall into three types: those involving newly identified causal mechanisms of risk; those in which risks are strongly determined by behavioral, social, or political responses to innovations; and those involving diffuse, expansive, and weakly defined technological capabilities. Separately considering knowledge conditions and control conditions can help identify current and coming issues likely to pose the greatest risk-management challenges, and suggest potential routes to effective risk management, even under large-scale and disruptive innovation.
This Article contains two imaginary stories about the future. The first attempts to imagine what might happen if intellectual property law no longer prohibited copying and we were to live in a world entirely driven by data, algorithms, and metrics that monitor reading and discussion; in particular, it dwells on how this might affect scientific and scholarly publications. The second attempts to imagine what would happen if all of the world's scholarly literature were suddenly deposited in an imaginary open access version of Wikipedia called Wikidemia, and how that might affect scientific practice and scholarly communication. A brief reflection on the significance of each follows.
Policing Police Robots
Elizabeth E. Joh
Just as they will change healthcare, manufacturing, and the military, robots have the potential to produce big changes in policing. We can expect that at least some robots used by the police in the future will be artificially intelligent machines capable of using legitimate coercive force against human beings. Police robots may decrease dangers to police officers by removing them from potentially volatile situations. Those suspected of crimes may also risk less injury if robots can assist the police in conducting safer detentions, arrests, and searches. At the same time, however, the use of robots introduces new questions about how the law and democratic norms should guide policing decisions—questions which have yet to be addressed in any systematic way. How we design, regulate, or even prohibit some uses of police robots requires a regulatory agenda now to address foreseeable problems of the future.
How will big data impact environmental law in the near future? This Essay imagines one possible future for environmental law in 2030 that focuses on the implications of big data for the protection of public health from risks associated with pollution and industrial chemicals. It assumes the perspective of an historian looking back from the end of the twenty-first century at the evolution of environmental law during the late twentieth and early twenty-first centuries. The premise of the Essay is that big data will drive a major shift in the underlying knowledge practices of environmental law (along with other areas of law focused on health and safety). This change in the epistemic foundations of environmental law, it is argued, will in turn have important, far-reaching implications for environmental law's normative commitments and for its ability to discharge its statutory responsibilities. In particular, by significantly enhancing the ability of environmental regulators to make harm more visible and more traceable, big data will put considerable pressure on previous understandings of acceptable risk across populations, pushing toward a more singular and more individualized understanding of harm. This will raise new and difficult questions regarding environmental law’s capacity to confront and take responsibility for the actual lives caught up in the tragic choices it is called upon to make. In imagining this near future, the Essay takes a somewhat exaggerated and, some might argue, overly pessimistic view of the implications of big data for environmental law’s efforts to protect public health. This is done not out of a conviction that such a future is likely, but rather to highlight some of the potential problems that may arise as big data becomes a more prominent part of environmental protection. In an age of data triumphalism, such a perspective, it is hoped, may provide grounds for a more critical engagement with the tools and knowledge practices that inform environmental law and the implications of those tools for environmental law’s ability to meet its obligations. Of course, there are other possible futures, and big data surely has the potential to make many positive contributions to environmental protection in the coming decades. Whether it will do so will depend in no small part on the collective choices we make to manage these new capabilities in the years ahead.