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#1 Law & Tech: What do we mean exactly?

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The following text is part of a weekly DigiCon Symposium entitled ‘The Hitchhiker’s guide to Law & Tech’. Each Tuesday, DigiCon will be publishing a piece dedicated to further understanding the relationship between Law & Technology. The series is organized and curated by Nicolas Petit, Daniel Rozenberg and Francisco de Abreu Duarte.

Much ambiguity surrounds what lawyers mean when they say they work in law and technology (“law & tech”). This short text explains what it means to teach, write, and study law & tech.

Law & tech is concerned with discovering relationships between legal institutions and technical knowledge. The underlying hypothesis is that law shapes technology, and that technology shapes law. Law & tech works test this hypothesis to establish or reject patterns of interaction between law and technology.

A genuine scientific ambition thus lies at the heart of law & tech. This distinguishes law & tech from doctrinal legal research. Though both share a positivist ambition, describing the law is only one component – the input or output – of law & tech. Books or papers on the law of Artificial Intelligence (AI) or of the Metaverse cannot really be said to pertain to the law & tech genre.  Nor is law & tech about method.  Scholars from the field rely on approaches that have little in common (historical analysis, case study, empirical methods, scenario building, foresight analysis, and so on).

Law & tech’s scope is broad. The law & tech literature spans the entire range of legal disciplines, from constitutional law to intellectual property and environmental protection. Legal fields connected with highly politicized issues tend to dominate the literature. Digital technologies (like artificial intelligence or the blockchain) receive much attention in the contemporary discussion.

The learning from law & tech is useful.  Policymakers leverage law & tech insights to improve legal institutions or influence the rate and direction of technological change. True, law & tech does not always supply actionable solutions. Law & tech works tend to emphasize key issues, raising policy makers’ awareness to hard problems like the “compartmentalization” of legal responses to technology (Bernstein, 2007), the issue of regulatory connection or “pacing”  (Brownsword, 2008), or the knee jerk bias known as the “need for law” (Tranter, 2011). But law & tech also gives clear lessons. For example, the literature suggests that technologies seldom arise in a legal vacuum, and that claims of lawlessness are unwarranted. Similarly, one interesting takeaway from the literature is that any legal policy of control over technological development will typically not entail complete termination of an activity but its modification or quantitative reduction. Another solid insight of the literature is that social demands for lawmaking correlate with technology diffusion, not creation. And a last important showing is that catastrophic events play a disproportionate role in determining perception of change, and shaping demands for law.

Altogether, the lessons of law & tech relativize predictions of technological apocalypse or apotheosis. They invite policymakers to take sensationalist language and bombastic catchwords – like technological “revolution” or “disruption” – with a grain of salt.

The scientific ambition and policy relevance of law & tech is commensurate with the responsibility incumbent on its actors. Law & tech is, and should remain, densely descriptive, more than normative. The legitimacy of law & tech is conditional on a strict commitment to what Max Weber called “axiological neutrality”. Biases against institutions (for example, libertarian perspectives) or technology (for example, deterministic or substantive perspectives) are against the very nature of the law & tech enterprise.

Similarly, the potential for law & tech to impact on the real world calls for a high standard of research humility. Few lawyers are trained in the full range of legal disciplines. Even fewer lawyers have a technical background.  Interdisciplinarity is hard, very hard. Mistakes about what technology does, does not, or can and cannot do are possible – and simplistic, not stylized, representations of legal doctrine are convenient.

With this, the way forward for the success of the law & tech enterprise is clear. A condition of enduring relevance for law & tech is to resist ideology. This is an important reminder at a time where the joint forces of digitalization and social disorientation following the turn of the millennium nurture popular demands for more regulations, and for existing regulations to do more (Knipper et al, 1998).

Suggested citation: Petit, N., 2022. #1 Law & Tech: what do we mean exactly? The Digital Constitutionalist. Available at: https://digi-con.org/1-law-tech-what-do-we-mean-exactly/

Nicolas Petit
Joint Chair in Competition Law at the Department of Law and at the Robert Schuman Centre for Advanced Studies at European University Institute

Nicolas Petit is Joint Chair in Competition Law at the Department of Law and at the Robert Schuman Centre for Advanced Studies. He is also invited Professor at the College of Europe in Bruges.

Nicolas is also the author of several publications, such as 'Big Tech and the Digital Economy: The Moligopoly Scenario' (Oxford University Press, 2019), or 'Droit européen de la concurrence' (Domat Montchrestien, 2013 and 2018), a monograph which was awarded the prize for the best law book of the year at the Constitutional Court in France. In 2005 he was a member of Harvard Law School’s Visiting Researchers Programme. Nicolas Petit’s work has appeared in numerous journals including the Antitrust Law Journal, the European Law Review, the Review of Industrial Organization, the Columbia Journal of European Law and the Fordham Intellectual Property, Media & Entertainment Law Journal. Nicolas Petit is the 44th top ssrn author in the category “Law”. Since 2017 he is a member of the European Commission High Level Expert Group on Artificial Intelligence.

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