History Lessons for a General Theory of Law and Technology

Abstract

Studying how prior law and technology issues were handled, and particularly how they were sometimes mishandled, provides valuable lessons for responding to current and future law and technology issues as they arise. This contribution to a symposium on whether and to what extent there can be a general theory of law and technology focuses on lessons that can be learned from past responses to once-new legal issues created by technological advance. The history lessons do not provide a complete road map for responding to each new law and technology issue - such a guide is not achievable considering the variety of technological change. But the lessons do provide a number of useful guidelines for how to confront novel law and technology challenges. In this article, I propose three lessons: (1) that preexisting legal categories may no longer apply for new law and technology issues; (2) that decision-makers be careful to avoid being blinded by the marvels of new technology in deciding law and technology cases; and (3) that the types of new law and technology disputes can be unforeseeable. I contend that these guidelines are applicable across a wide variety of technologies, even those that we cannot presently conceive of.