Why Focus on Technological Change?

The critics have arrived! Mike Madison at Madisonian offers two sources of skepticism about the development of a general theory of law and technology:

One is pragmatic: It seems to me that there needs to be a working definition of “technology” (as opposed to science, on the one hand, and as opposed to the arts, and/or the liberal arts, on the other hand), and there also needs to be a working definition of what counts as a “new” technology. What differentiates a theory of law and new technology from a theory of law and evolutionary cultural change? Or, for that matter, from a theory of evolutionary cultural change?

Two is conceptual: The last decade’s worth of scholarship has been profoundly theoretical, and often ahistorical and acontextual as well. Does society benefit from more theorizing today, or do scholars need to start the hard work of excavating history and practice?

Thank you Mike for initiating the debate from the side of the critics. Let me offer some responses:

Mike brings up a very important issue that needs to be addressed at the outset: How is technological change different from other forms of transformation? In other words, why does technological change warrant a special theory of law? One potential answer is that technological change, unlike other social evolutionary processes, has a quality of relative suddenness about it. For example, compare the slow evolution of social attitudes toward homosexual couples to the quick spread of cellular phones. This retort, admittedly, does not provide a complete distinction. Other forms of change, such as natural disasters and sometimes war also share the "suddenness" quality. At the same time, technological change also differs in the way it is treated by the legal system and particularly the backward looking court system. Courts are often reluctant to change precedent to accommodate changed circumstances. Yet, they are more likely to do so to accommodate technological change. Courts tend to reckon with technological change because it is often perceived as both an independent force and a change for the better.

Regarding Mike's point about the over-theorization of legal scholarship: Theorization is abundant - I agree. Yet, its focus has been primarily in the area of intellectual property, examining the creation of new technologies. The area of diffusion, that is, the adoption of technologies has received little attention. In fact, most scholarship on technological adoption is in the field of Science and Technology Studies. This research tends to be descriptive and often historical, rarely carrying any normative implications.