Recurring Dilemmas: The Law's Race to Keep Up With Technological Change

Abstract

Although not every technology generates litigation and legal scholarship, technological change is often the occasion for legal problems. Metaphors of law's struggle to keep up with technology reflect the law's failure to cope with technological change. These metaphors have been used in contexts as diverse as railroads, in vitro fertilization, computers, and the Internet. This article seeks to understand why technological change poses such difficulties for the law. It describes four common types of legal problems that arise from technological change: (1) the potential need for laws to ban, restrict or, alternatively, encourage a new technology; (2) uncertainty in the application of existing legal rules to new practices; (3) the possible over-inclusiveness or under-inclusiveness of existing legal rules as applied to new practices; and (4) alleged obsolescence of existing legal rules.

Using this classification, the Article considers the problem of designing a legal system able to cope in a rapidly changing technological environment. It analyzes the idea of "technological neutrality" as a technique of statutory drafting designed to ensure that statutes are able to operate fairly and effectively in diverse technological contexts. It demonstrates that, while such techniques might ensure proper treatment of existing technologies, they are ineffective in a changing technological environment. Instead of focusing on drafting techniques, a broader institutional context is required. The goal should not be technology-neutral legislation, but rather a legal system that continues to treat different technologies fairly and effectively as technology evolves.

Keywords: technology, technological change, technological neutrality