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What the Law Can Learn from Science Fiction

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Science fiction (SF) has much to say about the modern world and the legal systems that govern it. SF authors extrapolate from the issues of the day, predicting what might happen if the world continues on one course or another. The genre allows them to speculate about the consequences of new technologies and discoveries in a fictional setting. And it is undeniable that many of their predictions have been realized, from Jules Verne’s submarines to Starfleet’s communicators. 

But the images of the future predicted by SF have not always been rosy. The post-war era saw a boom in literature envisioning totalitarian states, most famously illustrated by Orwell’s Nineteen Eighty-Four. In the 1950s, science fiction offered chilling predictions about atomic bomb-induced genetic mutations (Godzilla, Them!) and nuclear apocalypse (On the Beach, Alas Babylon). In the 1970s, fear of overpopulation and ecological disaster led to films such as Silent Running and Soylent Green. The emergence of personal computers and video games in the 1980s gave rise to the cyberpunk movement exemplified by works like Neuromancer and Snow Crash. And the rise of the biotechnology industry in the 1990s inspired tales of genetic engineering gone awry, splendid examples of which can be found in the novel Jurassic Park and the film Gattaca.

It can be argued that much of what the public knows about space travel, genetic engineering, human cloning, nuclear weapons, nanotechnology, artificial intelligence, virtual reality, and every other technological development of the last century is gleaned largely from works of SF.

SF offers fertile ground for speculation about the future of technology and its effect on human society. As such, it is an ideal medium in which to consider how the law can and should develop in the face of technological change. Lawyers, judges, and legal academics thrive on hypothetical scenarios. Within the context of a SF story, an author can postulate a law or rule that responds to a scientific or technological discovery in a way that extends far beyond the classroom thought experiment. When a judge or a policymaker is faced with the necessity for a new legal rule, he or she typically considers, in addition to formal analytical factors – economic cost, consistency with existing rules, administrability, etc. – personal experience. Early twentieth-century legal realists and late-twentieth-century critical legal scholars have argued that this inherently human tendency is unavoidable and, in many cases, desirable. For example, thinking about mortgage reform, the policymaker invariably considers how systemic changes would affect his or her monthly mortgage payments or those of a parent, sibling, or child. In contemplating the length of a sentence for various offenses, the judge cannot help but think how he or she has spent, or would spend, the number of years that the accused will be put away. But in the case of new technologies and discoveries, there are few personal experiences from which to draw.

When we consider regulating human gene editing, or orbital weapons systems, or cerebral implants, personal experience fails us. Not only do we lack any direct experience with new technology, but we have little idea how different regulatory regimes would play out.

This is where SF can help. SF offers the ultimate legal hypothetical. It is not only analytical, as a government report or law review article can be, but also emotive. It portrays characters living with the consequences of different regulatory and legal regimes. And if the characters are believable, and the legal rules are plausible, then “experience,” as it is, can be simulated where none existed before. Works of SF thus serve as extended thought experiments, the best of which achieve character empathy that can give purchase to policy arguments and analysis. As SF master Arthur C. Clarke wrote, “[b]y mapping out possible futures, as well as a good many improbable ones, the science fiction writer does a great service to the community.”

Consider human genetic enhancement. Today, this technology does not exist outside of the laboratory, though there is a teeming bioethics and legal literature discussing its potential regulation. Part of the impetus behind this policy interest may derive from the vast fictional catalog of literature touching the subject. What policymaker, let alone academic, has not considered the dystopian vision of the 1997 film Gattaca when analyzing the regulation of genetic engineering? Or the corporate excesses described in Atwood’s Oryx and Crake or Crichton’s NEXT? And, most recently, the risk of release of viral biowarfare agents in Crichton’s classic Andromeda Strain?

There is also evidence that courts refer to these science fiction touchstones when considering such issues. For example, when assessing the constitutionality of a federal statute requiring the DNA profiling of criminal offenders, the Ninth Circuit reasoned in United States v. Kincade, 379 F.3d 813, 851 (9th Cir. 2004),

when such a policy’s constitutionality is determined merely by whether it seems reasonable under the totality of the circumstances, we all have reason to fear that the nightmarish worlds depicted in films such as Minority Report and Gattaca will become realities. 

And Orwell’s Nineteen Eighty-Four is so pervasive in the popular imagination that a recent search identifies 45 federal and state cases that mention the novel in their reasoning,  including a lengthy excerpt quoted by Supreme Court Justice Rehnquist in which he argues that

the Court’s opinion is ahead of its time: it could more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court’s opinion borrows, perhaps subconsciously, at least one idea…” 

Even the distinguished legal scholar Cass Sunstein has written an entire book about Star Wars and the insights that it offers for law, society and the U.S. Constitution (The World According to Star Wars (2019)).

While SF is of course, fiction, it is clearly convincing enough to help a reader or a court to envision possible scenarios that could evolve from current technology or society.

As Dean John Henry Wigmore wrote in 1908, “the lawyer, whose highest problems call for a perfect understanding of human character and a skillful use of this knowledge, must ever expect to seek in fiction as in an encyclopedia, that learning which he cannot hope to compass in his own limited experience.” This sentiment today applies not only to realistic literature but even more so to SF.

This post is based on the author’s recent article Science Fiction and the Law: A New Wigmorian Bibliography, 13 Harvard J. Sports & Ent. L. 65-111 (2022). His most recent book, The Genome Defense: Inside the Epic Legal Battle to Determine Who Owns Your DNA (NY: Algonquin, 2021) tells the true story of human gene patenting in America.

Jorge L. Contreras

Presidential Scholar and Professor

Director, Program on Intellectual Property and Technology Law

University of Utah S.J. Quinney College of Law

Salt Lake City, Utah, USA

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