Soft Law for Hard Problems: The Governance of Emerging Technologies in an Uncertain Future

Abstract

For a great many emerging technologies, as well as many existing ones, we are witnessing the twilight of the traditional regulatory system and its gradual replacement by an amorphous and constantly-evolving set of informal “soft law” governance mechanisms. This has profound ramifications for the future of statutory law, administrative regulation, and the evolution of a wide variety of technology sectors.

This paper explores the causes of this development. The underlying drivers of the modern computing and Internet revolution—microprocessors, software, sensors, networked technologies, wireless geolocation, and other digital devices and applications—are invading numerous precincts of the economy and upending the way business is done in a wide variety of sectors. These new technological capabilities are accelerating the well-known “pacing problem” of technology evolving faster than law’s ability to keep up. As a result, these new and rapidly-evolving technologies and sectors will present formidable challenges to traditional regulatory regimes and will necessitate the formulation of new governance processes.

We then examine how “soft law” systems, multistakeholder processes, and various other informal governance mechanisms are already evolving to fill that governance gap. Many other scholars have discussed the growth of soft law mechanisms in narrow contexts, but perhaps failed to acknowledge the extent to which these new governance models have taken hold across a wide range of sectors and have already become the dominant modus operandi for modern technological governance, at least in the United States. Toward that end, a partial inventory of many of these recent efforts and processes will be provided, with a particular focus on autonomous vehicles, commercial drones, the Internet of Things, and advanced medical and health technologies. Although this review of methods mostly covers developments at the United States federal level, the approaches identified here have also been mimicked in other countries and at a state level within the US.

Finally, the benefits and drawbacks of new soft law efforts will also be discussed and some suggestions will be offered for improving those governance mechanisms. The paper concludes that, for better or worse, the age of “hard law” governance will continue to give way and that soft law governance will become the new norm for a great many technologies and industry sectors. We also offer some suggestions for how to improve soft law systems and restrain their greatest potential risks.

Keywords: Technology, tech, emerging, policy, law, governance, rules, regulation, APA, administrative, procedures, OIRA, agency, threats, multistakeholder, guidance, guidelines, standards, consultation, formal, informal, jawboning, judicial, cars, drones, autonomous