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.

Author Details
Lyria Bennett Moses ∗
Faculty of Law
University of New South Wales
Sydney NSW 2052
AUSTRALIA
Ph: (011) 61 2 9385 2254
Fax: (011) 61 2 9385 1175

Email: lyria@unsw.edu.au

∗
The author would like to thank Professors Harold Edgar, Peter Strauss, Bill Sage, Frank Pasquale, and Arthur
Cockfield as well as Leif Gamertsfelder, Kieran Tranter and Dean Mark Henaghan for their helpful comments on
earlier drafts of this Article.
 Table of Contents
I. INTRODUCTION..............................................................................................................................................1

II. A PRACTICAL DEFINITION OF TECHNOLOGY.....................................................................................9

III. CATEGORIZING LEGAL PROBLEMS FOLLOWING TECHNOLOGICAL CHANGE....................16

A. TECHNOLOGICAL CHANGE CREATES A NEED FOR SPECIAL LAWS .................................................................17

B. TECHNOLOGICAL CHANGE GIVES RISE TO LEGAL UNCERTAINTY .................................................................20
1. Legal Uncertainty as a Persistent Problem..............................................................................................21
2. New Technology as a Cause of Legal Uncertainty...................................................................................26
3. The Specialness of Uncertainty Generated by Technological Change.....................................................34
C. LEGAL RULES MAY BE OVER-INCLUSIVE OR UNDER-INCLUSIVE IN NEW CONTEXTS .....................................36
1. Over-inclusiveness and Under-inclusiveness as a Persistent Problem ....................................................36
2. New Technology as a Cause of Over-inclusiveness and Under-inclusiveness .........................................39
3. The Specialness of Over-inclusiveness and Under-inclusiveness Generated by Technological Change .46
D. TECHNOLOGICAL CHANGE RENDERS SOME LAWS OBSOLETE .......................................................................46
1. Technological Change can Reduce the Importance of Regulated Conduct..............................................48
2. Technological Change can Undermine the Justification for Legal Rules ................................................49
3. Technological Change can Reduce Cost-Effectiveness ............................................................................53
E. SUMMARY OF PART III...................................................................................................................................54

IV. THE IMPOSSIBILITY OF TECHNOLOGY NEUTRAL DRAFTING AND THE NEED FOR A
BROADER INSTITUTIONAL APPROACH.........................................................................................................56

A. THE GOALS OF TECHNOLOGICAL NEUTRALITY ..............................................................................................56

B. DRAFTING TECHNIQUES CANNOT ALWAYS AVOID DISCRIMINATION BETWEEN TECHNOLOGIES...................58
C. DRAFTING TECHNIQUES CANNOT ALWAYS MAKE LAWS “FUTURE PROOF”..................................................62
D. THE ROLE PLAYED BY ADMINISTRATIVE AGENCIES IN ENHANCING ADAPTABILITY .....................................67
E. THE ROLE OF JUDGES IN ENHANCING ADAPTABILITY ....................................................................................71
1. Purposive Interpretation Increases Flexibility in the Context of Technological Change.........................72
2. Assessing Calabresi’s Proposal as a Solution to Problems Posed by Technological Change .................75
F. THE ROLE OF LAW REFORM ORGANIZATIONS IN CREATING A FUTURE-PROOF SYSTEM OF LAWS ................76

V. CONCLUSION.................................................................................................................................................80
 I. INTRODUCTION

It is often stated that the law lags behind technology. As technology changes, creating new

possibilities, lawyers and legal scholars struggle to deal with the implications. Many feel that

these problems can be countered with improved statutory drafting techniques, and call for

legislation that is “technology neutral” so that it operates effectively and fairly in different

technological contexts. However, technology neutral drafting might ensure proper treatment of

existing technologies, it will not always be ineffective in a changing technological environment.

In order to design a legal system able to cope with rapid changes in technology, a broader

perspective is required. The role played by administrative agencies, courts and law reform

organizations are crucial. 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.

The legal implications of technological change can be observed in a variety of contexts.

Throughout American history, lawyers have discussed the implications of technological change

for law. 1 An early example of technology giving rise to legal problems is railroads. By 1858, two

treatises were published dealing with the particular legal problems of the rail industry. 2 These

discussed topics from property rights over track and eminent domain to liability for damages to

employees, passengers, stock, and land. 3

1
Lawyers have also looked at the implications of technology for legal practice, although that issue is beyond the

scope of this Article.

2
ISAAC F. REDFIELD, A PRACTICAL TREATISE UPON THE LAW OF RAILWAYS (1858); EDWARD L. PIERCE, A

TREATISE ON AMERICAN RAILROAD LAW (1857).

3
See supra note 2.

1
 When computers took over important business functions in the mid-twentieth century,

lawyers pondered over how computers would be classified by judges. They asked what the

consequences might be of treating a computer as a legal entity, 4 whether computer print-outs

ought to be admissible as evidence in court, 5 whether data stored in a computer might constitute

a writing for the purposes of the statute of frauds and the statute of wills, 6 and whether computer

software was tangible personal property subject to sales and use taxes, 7 among other questions.

When genetic testing allowed people to find out whether they were at risk for a genetic

disease, litigation followed regarding whether a doctor had an obligation to disclose a patient’s

genetic information to affected relatives, 8 whether liability for negligent failure to perform a

4
E.g. John F. Banzhaf III, When a Computer Needs a Lawyer, 71 DICK. L. REV. 240, 240 (1966-1967). This issue is

compounded in an age of artificial intelligence: see Tom Allen & Robin Widdison, Can Computers Make

Contracts?, 9 HARV. J. L. & TECH. 25 (1996); Gunther Teubner, Rights of Non-humans? Electronic Agents and

Animals as New Actors in Politics and Law, 33 J. LAW & SOC. 497 (2006).

5
E.g. John R. Brown, Electronic Brains and the Legal Mind: Computing the Data Computer’s Collision with Law,

71 YALE L.J. 243, 248 (1961-1962); Rigdon Reese, Admissibility of Computer-Kept Business Records, 55 CORNELL

L. REV. 1033 (1969-1970).

6
E.g. Houston Putnam Lowry, Does Computer Stored Data Constitute a Writing for the Purposes of the Statute of

Frauds and the Statute of Wills?, 9 RUTGERS COMP. & TECH. L.J. 93 (1982).

7
E.g. Note, Sales and Use Tax of Computer Software – Is Software Tangible Personal Property?, 27 WAYNE L.

REV. 1503 (1980-81).

8
Pate v. Threlkel, 661 So. 2d 278, 282 (Fla. 1995); Safer v. Estate of Pack, 677 A.2d 1188 (N.J. Super. Ct. App.

Div. 1996), cert. denied, 683 A.2d 1163 (N.J. 1996).

2
genetic test can extend to a minor patient’s biological parent, 9 and whether an action exists for

failure to inform patients about prenatal genetic testing 10 or for negligence in administering the

tests. 11 Scholars have discussed whether genetic testing ought to be regulated,12 the affect of

genetic testing on the adoption process, 13 the use of genetic test results as evidence of causation

in toxic tort litigation, 14 and the possibility of compulsory prenatal screening. 15 Various groups

were also concerned that existing privacy and anti-discrimination laws failed to protect those at

risk of genetic diseases against discrimination in employment and insurance. 16

9
Malloy v. Meier, 679 N.W.2d 711 (Minn. 2004).

10
Munro v. Regents of the University of Cal., 263 Cal. Rptr. 878 (Cal. App. 1989).

11
Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477 (Cal. App. 1980).

12
E.g. David C. Bonnin, Comment and Note, The Need for Increased Oversight of Genetic Testing: A Detailed Look

at the Genetic Testing Process, 4 HOUS. J. HEALTH L. & POL'Y 149 (2003); Anny Huang, FDA Regulation of Genetic

Testing: Institutional Reluctance and Public Guardianship, 53 FOOD DRUG. L.J. 555 (1998). See also Susan M.

Faust, Baby Girl or Baby Boy? Now You Can Choose: A Look at New Biology and No Law, 10 ALB. L.J. SCI. &

TECH. 281 (2000) (in the context of sex selection).

13
E.g. Demosthenes Lorandos, Secrecy and Genetics in Adoption Law and Practice, 27 LOY. U. CHI. L.J. 277, 277

(1996); Jessica Ann Schlee, Genetic Testing: Technology that Is Changing the Adoption Process, 18 N.Y.L. SCH. J.

HUM. RTS. 133 (2001).

14
E.g. Randi B. Weiss et al, The Use of Genetic Testing in the Courtroom, 34 WAKE FOREST L. REV. 889 (1999).

15
E.g. Lori B. Andrews, Prenatal Screening and the Culture of Motherhood, 47 HASTINGS L.J. 967 (1996).

16
E,g, NIH-DOE Working Group on Ethical, Legal and Social Implications (ELSI) of Human Genome

Research: NIH-DOE Working Group on Ethical, Legal, and Social Implications of Human Genome Research,

Genetic Information and Health Insurance Report of the Task Force on Genetic Information and Insurance (Jan.

3
 Although not every technology 17 generates litigation and legal scholarship, technological

change is often the occasion for legal problems. The tension between law and technology has

been observed by multiple authors, and is often reflected in metaphors involving competitors in a

race, with law the inevitable loser. 18 Those using these metaphors are generally concerned about

the law’s failure (whether or not they regard it as inevitable) to cope with technological change,

2004), at http://www.genome.gov/10001750; National Human Genome Research Institute, Policy Recommendations

for Genetic Discrimination in Insurance or Employment (Oct. 2004), at http://www.genome.gov/11510228;

Hereditary Susceptibility Working Group of the National Action Plan on Breast Cancer (NAPBC): Karen

Rothenberg et al., Genetic Information and the Workplace: Legislative Approaches and Policy Challenges, 275

SCIENCE 5307, 1755-1757 (Mar. 21, 1997); Council for Responsible Genetics: Council for Responsible Genetics,

Genetic Discrimination, Testing, and Privacy (2004), at http ://www.gene-watch.org/programs/privacy.html.

17
This term is defined in Pt II. It is used in its general sense, and is not limited to information technology.

18
See, e.g., Mount Isa Mines Ltd. v. Pusey, 125 C.L.R. 383, 395 (Austl. 1970) (per Windeyer J.) (“Law, marching

with medicine but in the rear and limping a little”); Michael Kirby, Medical Technology and New Frontiers of

Family Law, 1 AUST. J. FAM. L. 196, 212 (1987) (“The hare of science and technology lurches ahead. The tortoise of

the law ambles slowly behind.”); Rev. John H. Pearson CSC, Regulation in the Face of Technological Advance:

Who Makes These Calls Anyway?, 13 N.D. J. OF L., ETHICS & PUB. POL’Y 1, 1 (1999) (“It has become commonplace

to note that these dizzying changes in science and technology can easily outstrip those systems by which we humans

make critical decisions about what can and should be done by those who are responsible members of society and

about how to protect those responsible members of society from those who are not so responsible.”); GRANT

GILMORE, THE AGES OF AMERICAN LAW 65 (“Rapid technological change unsettles the law quite as much as it

unsettles people.”). See also infra notes 21-23.

4
especially rapid or accelerating change. 19 Metaphors of the law falling behind technology have

been used in contexts as diverse as railroads, 20 in vitro fertilization, 21 computers, 22 and the

19
See Joseph W. Rand, What Would Learned Hand Do?: Adapting to Technological Change and Protecting the

Attorney-Client Privilege on the Internet, 66 BROOKLYN L. REV. 361, 371 (2000); Kieran Tranter, Terror in the

Texts: Technology – Law – Future, 13 LAW & CRITIQUE 75, 76-77 (2002).

20
See JAMES W. ELY, JR., RAILROADS AND AMERICAN LAW vii (2001) (“The railroad industry raised a host of novel

problems and placed unprecedented demands on the legal system.”). See also Corwin v. New York and Erie R.R.

Co., 13 N.Y. 42 (1855) (stating that the old common law rule that an owner of cattle could not maintain an action in

negligence where the cattle were injured while trespassing was no longer appropriate “when applied to the new

circumstances and condition of things arising out of the general introduction and use of railroads in the country.”)

21
See examples cited in Lyria Bennett Moses, Legal Responses to Technological Change: The Example of In Vitro

Fertilization, 6 MINN. J.L. SCI. & TECH. 505, 515-17 (2005).

22
E.g. Dana R. Wagner, The Keepers of the Gates: Intellectual Property, Antitrust, and the Regulatory Implications

of Systems Technology, 51 HASTINGS L.J. 1073, 1073-75 (“It should therefore come as no surprise that, as computer

technology has advanced rapidly in the past decade, the legal system has begun to question the applicability of its

traditional doctrines to the digitized world.”); CURTIS E. A. KARNOW, FUTURE CODES: ESSAYS IN ADVANCED

COMPUTER TECHNOLOGY AND THE LAW 1 (1997) (“I have seen the fields of law and technology thrown against each

other, necessarily but often antagonistically.”); Gregory E. Perry & Cherie Ballard, A Chip By Any Other Name

Would Still Be a Potato: The Failure of the Law and its Definitions to Keep Pace with Computer Technology, 24

TEX. TECH. L. REV. 797, 799 (1993) (looking at the consequences when “the legal system fails to keep pace with

computer technology”); I. Trotter Hardy, Computer RAM "Copies": A Hit or a Myth? Historical Perspectives on

Caching as a Microcosm of Current Copyright Concerns, 22 U. DAYTON L. REV. 423, 425 (1997) (“Technological

change presents challenges to the law”).

5
Internet. 23 However, the frequent use of these metaphors is not reflected in concerted attempts to

understand why they are appropriate.

The metaphors themselves reify both technology and law, suggesting that they are both

things at a measurable stage of sophistication or progress. 24 Yet nothing in the literature explains

why such reification (even as a metaphorical image) is appropriate. While it is common to find

scholarly articles raising particular legal issues arising in the context of particular technologies,

or even articles focusing on the utility of studying law through the lens of a single technology

such as the Internet, 25 there is little discussion of why so many legal problems arise in the

context of technological change, understood more generally. Because professional focus tends to

be limited to a particular industry or area of law, few have considered what the computer law

23
E.g., Richard A. Epstein, Privacy, Publication, and the First Amendment: The Dangers of First Amendment

Exceptionalism, 52 STAN. L. REV. 1003, 1004 (2000) ("Doctrinal analysis often requires us to reconcile traditional

legal principle with modern technological innovation. Nowhere is this task of reconciliation more daunting than with

cyberspace, where the speed and spread of information has been ratcheted up to levels that were unimaginable even

a generation ago."); Edward Lee, Rules and Standards for Cyberspace, 77 NOTRE DAME L. REV. 1275, 1279 (2002)

(“While the law has lagged behind technological developments in the past, the Interent seems to present challenges

of an entirely different order.”).

24
See Leo Marx, Technology: The Emergence of a Hazardous Concept, 64(3) SOCIAL RESEARCH 965 (1997).

25
Compare David R Johnson and David Post, Law and Borders: The Rise of Law in Cyberspace, 48 STAN. L. REV.

1367 (1996) and Lawrence Lessig, The Path of Cyberlaw, 104 YALE L.J. 1743, 1744–5 (1995) with Joseph H.

Sommer, Against Cyberlaw, 15 BERK. TECH. L.J. 1145, 1148 (2000) and Frank H. Easterbrook, Cyberspace and the

Law of the Horse, 1996 U. CHI. LEGAL F. 207 (1996). See also Jonathan D. Bick, Why Should the Internet Be Any

Different?, 19 PACE L. REV. 41 (1998); I. Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U. PITT L.

REV. 993 (1994).

6
might share with biomedical law or even the law of railways. Aside from brief but interesting

comments in speeches 26 and symposia, 27 issues of law and technology (in its broader sense)

remain largely unexplored. 28 The metaphors suggesting a conflict between law and technology

thus seem to reflect nothing more than random critiques of law in particular technological

contexts.

26
See, e.g., Justice Michael Kirby, The Commonwealth Lawyer: Law in an Age of Fantastic Technological Change,

available at http://www.highcourt.gov.au/speeches/kirbyj/kirbyj_thecommonwealthlawyer.htm; Justice Michael

Kirby, The Law and Modern Technology (1982); Julian Burnside QC, Does the Law Cope with New Technology,

Australian Bar Association Conference, Noosa, Queensland, Australia, 3-7 July, 1994 (on file with author).

27
See, e.g., Alan Heinrich et al., At the Crossroads of Law and Technology, 33 LOY. L.A. L. REV. 1035 (2000)

(discussing how technological change has created new forms of property, generated new ethical and legal questions,

challenged legal institutions, and changed law school curriculums).

28
Exceptions are Gaia Bernstein, Accommodating Technological Innovation: Identity, Genetic Testing, and the

Internet, 57 VAND. L. REV. 965 (2004) (comparing the impact of genetic testing and the Internet on identity

interests, showing how similar problems arise in different settings); Gaia Bernstein, The Paradoxes of Technological

Diffusion: Genetic Discrimination and Internet Privacy, 39 CONN. L. REV. 241 (discussing how, where a technology

has a negative impact on social values, certain features of a technology’s diffusion can create inefficient situations);

Arthur Cockfield, Towards a Theory of Law and Technology, 30 MANITOBA L.J. 383 (2004); Monroe E. Price, The

Newness of New Technology, 22 CARDOZO L. REV. 1885, 1888 (2001); David Friedman, Does Technology Require

New Law?, 25 HARV. J.L. & PUB. POL’Y 71, 71 (2001-2002). In the field of international law, see generally Joseph

W. Dellapenna, Law in a Shrinking World: The Interaction of Science and Technology with International Law, 88

KY. L.J. 809 (1999-2000); Colin B. Picker, A View From 40,000 Feet: International Law and the Invisible Hand of

Technology, 23 CARDOZO L. REV. 149 (2001).

7
 Although care is needed to avoid reifying both “law” and “technology,” the metaphor of law

struggling to catch up with technological change does contain an important insight. Although law

may not struggle with technology as such, many legal problems do arise in new technological

contexts. This article explains why technological change generates legal problems, and classifies

the types of problems that arise. After clarifying what is meant by “technology” in Part II, Part

III identifies four types of legal problems that frequently follow technological change. These are:

(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. These four types of problems are not limited to any

one type of technology but rather have arisen in contexts as diverse as transportation, computing,

and biotechnology. Examples from a variety of fields are therefore used to illustrate each of these

four problem types.

Part IV employs the structured approach set out in Part III to demonstrate the problems with

treating technological neutrality as a feature of statutes rather than as a feature of systems of

laws. Techniques of statutory drafting cannot ensure that laws will continue to operate fairly and

effectively in new technological contexts without reducing the operational impact of at least

some types of laws. It is possible, however, to design a legal system that treats different

technologies fairly and is resistant to difficulties associated with technological change. This

requires factoring in the role played by administrative agencies, courts, and law reform

organizations. While the precise role that can be played by each will only be sketched in Part IV,

my goal is to highlight the need for discussions of technological neutrality to take place in this

broader context.

8
 II. A PRACTICAL DEFINITION OF TECHNOLOGY

In the Introduction, I identified several major developments that were perceived as giving

rise to legal problems or causing the law to fall behind. These developments were in the areas of

transportation (railroads), medicine (in vitro fertilization and genetic testing), computing, and

communication (the Internet). In this Part, I explore the link between these diverse inventions

through analyzing the nature of technology. 29

There is much controversy over the definition of “technology.” 30 Because “technology”

is not a univocal term, 31 it is misleading to talk about a single definition of “technology,” and

more accurate to speak of a family of phenomena to which the label has been applied. 32 It has

been used to refer to (1) tools and techniques; (2) organized systems such as factories; (3)

applied science; (4) those methods that achieve, or are intended to achieve, a particular goal such

29
For an extended discussion of the importance of a theory of law and technology, as opposed to narrower or

broader thories, see Lyria Bennett Moses, Why Have a Theory of Law and Technological Change, (2007) MINN. J.L.

SCI. & TECH. (forthcoming).

30
Robert E. McGinn, What is Technology, 1 RESEARCH IN PHILOSOPHY AND TECHNOLOGY 179, 179 (1978); Paul T.

Durbin, Dictionary of Concepts in the Philosophy of Science 315 (1988) (entry on “Technology”); JOSEPH C. PITT,

THINKING ABOUT TECHNOLOGY 1 (2000). For a discussion of the different ways in which technology has been

defined, see generally STANLEY F KASPRZYK, TECHNOLOGY (1973).

31
CARL MITCHAM, THINKING THROUGH TECHNOLOGY: THE PATH BETWEEN ENGINEERING AND PHILOSOPHY 152

(1994); Leo Marx, Technology: The Emergence of a Hazardous Concept, 64(3) SOCIAL RESEARCH 965 (1997).

32
For a history of the term “technology” in America, see Eric Schatzberg, Technik Comes to America: Changing

Meanings of Technology before 1930, 47(3) TECH. & CULTURE 486 (2006); RUTH OLDENZIEL, MAKING

TECHNOLOGY MASCULINE ch. 1 (1999).

9
as efficiency, the satisfaction of human needs and wants, or control over the environment; and

(5) the study of or knowledge about such things. 33 Philosophers and historians have sometimes

used the word expansively to cover the use of conceptual tools (thus including abstract thought

as a form of “technology”), 34 organizations and hierarchies, 35 and legislation and government. 36

Because the term “technology” has many usages, it does not make sense to enquire about

the definition of technology. Instead, most scholars explore an aspect of technology that ties in

with the topic of their work. 37 A historian might be interested in describing the history of

technical knowledge 38 or particular techniques, 39 a sociologist might choose to focus on how a

33
Larry A HICKMAN, PHILOSOPHICAL TOOLS FOR TECHNOLOGICAL CULTURE PUTTING PRAGMATISM TO WORK 11

(2001); CARL MITCHAM, THINKING THROUGH TECHNOLOGY: THE PATH BETWEEN ENGINEERING AND PHILOSOPHY

116-17, 150, 160, 308 (1994).

34
LARRY A HICKMAN, PHILOSOPHICAL TOOLS FOR TECHNOLOGICAL CULTURE PUTTING PRAGMATISM TO WORK 26,

34 (2001), following the theme in John Dewey, What I Believe, in THE LATER WORKS, THE COLLECTED WORKS OF

JOHN DEWEY, 1882-1953 5.270 (Jo Ann Boydston, ed. 1981-1990).

35
JOSEPH C. PITT, THINKING ABOUT TECHNOLOGY 10, 44 (2000); URSULA FRANKLIN, THE REAL WORLD OF

TECHNOLOGY 12 (1992).

36
See CARL MITCHAM, THINKING THROUGH TECHNOLOGY: THE PATH BETWEEN ENGINEERING AND PHILOSOPHY

116, 150 (1994); JOSEPH C. PITT, THINKING ABOUT TECHNOLOGY 10, 44 (2000).

37
Robert E. McGinn, What is Technology, 1 RESEARCH IN PHILOSOPHY AND TECHNOLOGY 179, 179 (1978); CARL

MITCHAM, THINKING THROUGH TECHNOLOGY: THE PATH BETWEEN ENGINEERING AND PHILOSOPHY 153 (1994).

38
See, e.g., GOVINDAN PARAYIL, CONCEPTUALIZING TECHNOLOGICAL CHANGE: THEORETICAL AND EMPIRICAL

EXPLORATIONS 9, 146 (1999).

10
particular tool has affected society, 40 a philosopher might equate technology with means or with

rationality, 41 an environmentalist might conceptualize technology as the means by which man

exercises power over nature, 42 and an economist might equate technology with the industrial

arts. 43 Lawyers may, in some contexts, be interested in each of these aspects of technology. A

patent lawyer will look at the state of technical knowledge (prior art) when assessing whether a

patent claim was obvious, 44 an environmental lawyer may comment on the effectiveness of

technology-forcing in polluting industries, 45 and other lawyers may be interested in litigation and

39
See Carroll W. Pursell, Jr., History of Technology, in A GUIDE TO THE CULTURE OF SCIENCE, TECHNOLOGY, AND

MEDICINE 70, 75 (Paul T. Durbin ed., 1980).

40
E.g. LYNN WHITE, JR., MEDIEVAL TECHNOLOGY AND SOCIAL CHANGE (1962) (looking at the social consequences

of the invention of the stirrup and plough).

41
E.g. Marx W. Wartofsky, Technology Power and Truth, in DEMOCRACY IN A TECHNOLOGICAL SOCIETY, 9

PHILOSOPHY & TECHNOLOGY 15, 18-19 (Langdon Winner, ed. 1992); LEON R. KASS, LIFE, LIBERTY AND THE

DEFENSE OF DIGNITY: THE CHALLENGE FOR BIOETHICS 31-33 (2002); JACQUES ELLUL, THE TECHNOLOGICAL

SOCIETY (John Wilkinson trans. Vintage Books 1967).

42
E.g. DAVID HAMILTON, TECHNOLOGY, MAN AND THE ENVIRONMENT 17 (1973) (defining technology as “the

means by which Man extends his power over his surroundings”); JOHN ASHTON & RON LAURA, THE PERILS OF

PROGRESS 1-2 (1998) (describing technology as a “tool for the rape of the earth” and the driving force behind

technology as “the lust for control over the environment”).

43
Michael Fores, Technology and Innovation: Some Comments on the Literature, 8(3) TECHNOLOGY AND SOCIETY

94, 94-96.

44
See 35 U.S.C. § 103 (2005).

45
E.g. Thomas O. McGarity, Radical Technology-Forcing in Environmental Regulation, 27 LOY. L.A. L. REV. 943

(1994).

11
regulation in the context of injuries caused by technical objects in a modern workplace. 46 But no

real insight can be gained grouping cases involving technical knowledge, technical objects or

technical production. It would be akin to preparing for rural legal practice by studying “the law

of the horse” and reading only those cases that concern horses rather than gaining a general

understanding of the law of torts, contracts, property, crime, and so forth. 47 A student will gain a

better understanding of the law if taught traditional subjects without being confined to cases

involving technical knowledge, technical objects, and technical production. For example, one

would not want to learn antitrust and business law by reference solely to cases involving

technological industries.

There is one aspect of technological change, however, that links those technologies that

have the most direct impact on law. This is the capacity of new technology to enable new forms

of conduct, including by altering the means by which similar ends are achieved. The current state

of technology limits in practice what actions we can perform, what objects we can create, and

what relationships we can form. Some technological change has a significant impact on what is

possible – in vitro fertilization, for example, allowed infertile couples to bear and raise a

genetically related child, created a new industry, and gave rise to a new thing, the in vitro

embryo. The introduction of such significant changes into a world of rules that govern what

46
E.g. Sheryl Gordon McCloud, Pink Collar Blues: Potential Hazards of Video Display Terminal Radiation, 57 S.

CAL. L. REV. 139 (1983) (discussing the potential adverse effects of video display terminals).

47
The “law of the horse” reference is from Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U.

CHI. LEGAL F. 207, 207-08 (1996) (comparing teaching cyberlaw to the futility of teaching torts, property and

commercial law solely by reference to cases involving horses).

12
actions we may perform, what objects we may create and use and what relationships will be

recognized, may create legal problems. As will be illustrated in Part III, new regulation may be

necessary, existing rules may be rendered obsolete, and the application of existing rules to new

situations may generate uncertainty or may lead to seemingly inappropriate results.

Thus some technologies generate legal dilemmas by virtue of their capacity to enable

new forms of conduct. This feature of technology is emphasized in a definition of “technology”

put put forward by Donald Schön in 1967, being “any tool or technique, any product or process,

any physical equipment or method of doing or making, by which human capability is

extended.” 48 While this is clearly not the only aspect of technology worthy of examination, it is

the most likely to have a direct impact on law. The technologies that are perceived to race ahead

of law and generate new fields of legal scholarship, such as railroads, in vitro fertilization,

genetic testing, computers, and the Internet, are all associated with significant new possibilities

for action.

Of course, not all technologies that extend human capacity will generate legal problems.

The electric can opener may save time compared to its manual cousin, but it does not necessitate

any change to the law. Similarly, the fact that a widget can be manufactured marginally faster or

cheaper rarely requires a direct legal response in the sense that the legal framework is no longer

sufficient, certain or appropriate simply because the new technique exists. Ultimately, such

developments, taken cumulatively, may have social and economic impacts that influence both

government budgets and law. Legal changes (such as economic, industrial, or tax reforms) might

48
DONALD SCHÖN, TECHNOLOGY AND CHANGE 1 (1967). See also LANGDON WINNER, AUTONOMOUS TECHNOLOGY

98, 178-79 (1977).

13
be traced back in some circumstances to a series of technological changes. Such changes are not

motivated by the mere existence of a new possibility, but rather by a chain that might begin with

technological change, but includes resulting impacts on society and the economy. The focus here

will be on technologies that motivate legal change by their very existence.

The focus on technological change looks to changes in what is practically possible, not

ordinary changes in behavior or cultural practices. This excludes changes in social norms and

customs that change what we might be willing to do or desirous of doing. 49 Such changes are

rarely so sudden and dramatic that the law’s ability to keep pace is questioned. Where the law

does respond to social change, it is rarely for the same reasons as it responds to technological

change. While few would argue that the legal subordination of African-Americans was ever

justified (despite prevailing cultural norms), no-one would suggest that a law for vehicles

moving on fixed track was required before transportation by rail became a technical possibility. 50

While the law does adapt to social change, such adaptations are not necessarily made because of

the social change, but rather because of changed perceptions of what is right or what is normal. 51

Also excluded from the notion of technology used here are “technologies” such as legal

regulation. 52 These topics raise different issues to those technologies associated more closely

49
See generally, Lyria Bennett Moses, Why Have a Theory of Law and Technological Change, MINN. J. L. SCI. &

TECH. (forthcoming).

50
Id.

51
Id.

52
See, e.g., Kieran Tranter, ‘The History of the Haste-Wagons’: The Motor Car Act 1909 (Vic), Emergent

Technology and the Call for Law, 29 MELB. U.L. REV. 843, 869-875, 878-879 (2005).

14
with applied science and engineering. New regulatory techniques are themselves legal change, so

an examination of the impact on law is circular. On the other hand, a lawyer’s “invention” such

as a new tax loophole or takeover strategy, can necessitate legal change. Such “technologies,” if

unforeseen by legislators, may generate similar dilemmas to those presented in Part III. The

dilemmas are, however, more commonly designed rather than incidental. For example, a lawyer

discovering a new tax loophole is deliberately trying to make the relevant tax provisions under-

inclusive by altering a client’s conduct. Technologies such as railroads, genetic testing, in vitro

fertilization, computing and the Internet were not designed to evade law or employ it for gain,

but were rather created for independent reasons. Their relationship with the law is not

intentional.

Finally, it is worth noting that on some definitions of technology, this Article is itself a

technology. It uses techniques of legal analysis to reason about legal implications of technology.

The question of whether an Article such as this is an overly technical response to problems raised

by technology, as might be suggested by substantive theories of technology, 53 must be left for

another day. 54

53
See Louis E. Wolcher, The End of Technology: A Polemic, 79 WASH. L. REV. 331 (2004). See also generally MAX

WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 181-82 (1958); MARTIN HEIDEGGER, The Question

Concerning Technology, in THE QUESTION CONCERNING TECHNOLOGY AND OTHER ESSAYS 3 (William Lovitt trans.,

1977); JACQUES ELLUL, THE TECHNOLOGICAL SOCIETY (1964).

54
See also Margaret Thornton, Technocentrism in the Law School: Why the Gender and Color of Law Remain the

Same, 36 OSGOODE HALL L.J. 369, 378 (1998) (“Technocratic law cloaks the partiality of justice so as to disguise its

masculinist, class, race, heterosexual, and corporatist predilections.”)

15
III. CATEGORIZING LEGAL PROBLEMS FOLLOWING TECHNOLOGICAL CHANGE

As noted in Part I, lawyers and legal scholars frequently comment on the law’s inability

to keep up with technological change. They make these observations in various contexts. Over

the course of history, the law has been observed to be in need of reform due to changes in

transportation, computer, medical and communications technologies, among others. In all of

these different contexts, the alleged reasons why the law needs to change are broadly similar.

There are four main reasons why advocates may urge legal change as a response to technological

change, namely: 55

(i) The Need for Special Laws. There may be a need to regulate certain new forms

of conduct using new, specially tailored, laws. In some cases, it may even be appropriate

to ban a particular technology or particular applications of that technology. Alternatively,

there may be proposals to mandate or encourage a new activity.

(ii) Uncertainty. The law may be uncertain as it applies to new forms of conduct. In

other words, it may not be clear whether such conduct is commanded, prohibited, or

authorized. Existing legal rules may need to be clarified.

(iii) Over-inclusiveness and Under-inclusiveness. Where existing legal rules were

not formulated with new technologies in mind, those rules may inappropriately include or

exclude new forms of conduct.

(iv) Obsolescence. Some existing legal rules may be justified, explicitly or implicitly,

on the basis of a premise that no longer exists.

55
I have mentioned these categories previously, in Lyria Bennett Moses, Legal Responses to Technological Change:

The Example of In Vitro Fertilization, 6 MINN. J.L. SCI. & TECH. 505, 517 (2005).

16
 A. Technological Change Creates a Need for Special Laws
A new technology carries with it new possibilities, and these can potentially conflict with

existing social, environmental and cultural values. 56 The establishment of railroad networks in

the 1800s caused social disruption, conglomerated economic power, and posed physical dangers

to railroad employees and local communities. 57 The ability to conceive a child using technology

rather than sexual intercourse can be seen as unnatural and inappropriate as well as, in the case of

in vitro fertilization, a health risk to mother and child. 58 The Internet can be used to spread child

56
See Michael H. Shapiro, Lawyers, Judges and Bioethics, 5 S. CAL. INTERDIS. L.J. 113, 113 (1997); Gaia Bernstein,

The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 WASH. L. REV. 1035

(2002); Christopher T. Hill, The Public Dimension of Technological Change: Impact on the Media, the Citizenry,

and Governments--A U.S. Perspective, 25 CAN.-U.S. L.J. 153, 155 (1999). Mesthene has described these impacts as

negative externalities that result from “innumerable individual decisions to develop individual technologies for

individual purposes without explicit attention to what all these decisions add up to for society as a whole and for

people as human beings”: Emmanual G. Mesthene, The Role of Technology in Society, in TECHNOLOGY AND THE

FUTURE 65 (Albert H. Teich ed. 1997).

57
See JAMES W. ELY, JR., RAILROADS AND AMERICAN LAW (2001). See also Aryeh S. Friedman, Law and the

Innovative Process: Preliminary Reflections, 1986 COLUM. BUS. L. REV. 1, 2 (1986).

58
See Congregation for the Doctrine of the Faith, Instruction on Respect for Human Life in Its Origin and on the

Dignity of Procreation – Replies to Certain Questions of the Day (February 22, 1987), available at

http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_19870222_respect-for-

human-life_en.html; Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial

Insemination, 77 WASH. L. REV. 1035 (2002); Lyria Bennett Moses, Legal Responses to Technological Change: The

Example of In Vitro Fertilization, 6 MINN. J.L. SCI. & TECH. 505.

17
pornography and copy music illegally, as well as for more productive purposes. 59 Computers, the

Internet and genetic testing pose potential threats to privacy. 60 Technological change thus has the

potential to impact negatively on the environment, human physical and mental health, as well as

having a significant potential effect on culture and ethics. 61

There are various ways in which a clash between a new technology and existing values

might be resolved. Our ethics and thought processes may eventually adapt so that the technology

59
See David McGuire, Report: Kids Pirate Music Freely, Washingtonpost.com (May 18, 2004), at

http://www.washingtonpost.com/wp-dyn/articles/A37231-2004May18.html. Child pornography generates

approximately three billion dollars annually. Internet Filter Reviews 2005: Pornography Industry Revenue Statistics,

available at http://internet-filter-review.toptenreviews.com/internet-pornography-statistics.html. Also, a researcher

at Stockholm University’s Institute of Computer and System Science reported counting 5561 messages or postings

about child pornography in four electronic bulletin boards listed in USENET during a seven day period between late

December 1994 and early January 1995. See JONATHAN ROSENOER, CYBERLAW 311 (1996).

60
Gaia Bernstein, The Paradoxes of Technological Diffusion: Genetic Discrimination and Internet Privacy, 39

CONN. L. REV. 241; Aryeh S. Friedman, Law and the Innovative Process: Preliminary Reflections, 1986 COLUM.

BUS. L. REV. 1, 27 (1986).

61
See, e.g., NEIL POSTMAN, TECHNOLOPOLY: THE SURRENDER OF CULTURE TO TECHNOLOGY (1992); Bernard

Stiegler, Technics and Time, 1: The Fault of Epimetheus 15 (Richard Beardsworth & George Collins trans. 1998)

(“Technics evolves more quickly than culture”); Aant Elzinga, Theoretical Perspectives: Culture as a Resource for

Technological Change, in M. HÅRD & A. JAMISON EDS., THE INTELLECTUAL APPROPRIATION OF TECHNOLOGY 17,

24 (1998) (“The introduction of new technologies involves not only new modes of organization of social relations

but also a triggering of cultural nerves.”); A. Jamison & M. Hård, The Story-Lines of Technological Change:

Innovation, Construction and Appropropriation, 15(1) TECH. ANALYSIS & STRATEGIC MANAGEMENT 81, 86-90

(2003) (discussing the cultural appropriation of technology).

18
becomes integrated into the social world. 62 Public concerns may be ignored or dismissed as

ignorance. 63 They may instead be directly taken into account in the design process.64

Alternatively, government may ban 65 or limit 66 the use of a technology in order to reduce its

impact, protect traditional values or resolve moral arguments about the adoption of a

technology. 67 In other situations, government might allow the technology to be used but establish

public or private remedies for those harmed. 68 A failure to take action where new technology is

62
Michael H. Shapiro, Lawyers, Judges and Bioethics, 5 S. CAL. INTERDIS. L.J. 113, 113 (1997); Gaia Bernstein, The

Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 WASH. L. REV. 1035

(2002).

63
Jesper Lassen & Andrew Jamison, Genetic Technologies Meet the Public: The Discourses of Concern, 31(1) SCI.,

TECH. & HUMAN VALUES 8, 27 (2006).

64
ROBERT POOL, BEYOND ENGINEERING: HOW SOCIETY SHAPES TECHNOLOGY 278-301 (1997); Johan Schot, The

Constested Rise of a Modernist Technology Politics, in MODERNITY AND TECHNOLOGY 257, 272-276 (Thomas J.

Misa et al eds., 2003).

65
See, e.g., CAL HEALTH & SAF CODE § 24185 (2006) (prohibiting human cloning).

66
According to a 2003 survey in Australia, a majority of Australians agree with the statement “It is important for

governments to regulate new technologies”: Michael Gilding & Christine Critchley, Technology and Trust: Public

Perceptions of Technological Change in Australia, 1(1) AUST. J. EMERGING TECH. & SOC. 52, 59 (2003).

67
See generally Tony Honoré, The Dependence of Morality on Law, 13(1) OX. J. LEGAL STUD. 1 (1993); Gregory N

Mandel, Technology Wars: The Failure of Democratic Discourse, 11 MICH. TELECOMM. TECH. L. REV. 117 (2005).

68
See, e.g., Barry R. Furrow, Governing Science: Public Risks and Private Remedies, 131 U. PA. L. REV. 1403

(1983). On the tendency of government to choose regulation over a ban, see Kieran Tranter, ‘The History of the

Haste-Wagons’: The Motor Car Act 1909 (Vic), Emergent Technology and the Call for Law 29 MELB. U.L. REV.

843, 867, 878-88 (2005).

19
perceived to cause harm, threaten social values, or require central planning might well lead to

claims that law has fallen behind the times. In fact, new technologies have often led to specialist

agencies designed to regulate and control new fields of endeavor. 69

Conversely, government may also be asked to enact laws designed to reap the benefits

from technologies that are perceived to be beneficial for society. In the past, governments have

subsidized the construction of railways and high performance computing, 70 and required health

insurance organizations to provide cover for in vitro fertilization. 71 They have also enacted rules

aimed at coordinating the use of technologies, as in the case of traffic rules and technical

standards. 72 Thus both perceived benefits and harms can cause a government to enact special

laws to address issues raised by technological change.

B. Technological Change Gives Rise to Legal Uncertainty

Not only will new technology frequently ground new law, it generates uncertainties as to

the application of existing law. A common complaint among scholars of law and technology is

the fact that their new field is rife with uncertainty. Allegations of uncertainty or strings of

69
Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1262 (1986) (discussing

radio, air travel and energy)

70
E.g. High-Performance Computing Act, codified at 15 U.S.C. §§ 5501 et seq; Pennsylvania Act No. 102 of 1831-

1832, summarized in Legislation, 9 Am. Jurist & L. Mag. 192 (1833). See also JAMES W. ELY, JR., RAILROADS AND

AMERICAN LAW 19-30 (2001) (on legal issues surrounding public funding for railroads).

71
Lyria Bennett Moses, Legal Responses to Technological Change: The Example of In Vitro Fertilization, 6 MINN.

J.L. SCI. & TECH. 505, 533 n.137 (2005).

72
For a description of different types of standards, see http://standards.gov/standards_gov/v/Standards/index.cfm

20
unanswered hypotheticals can be seen in the early literature in areas as diverse as in vitro

fertilization, 73 genetic testing, 74 computing processes, 75 and nanotechnology. 76

1. Legal Uncertainty as a Persistent Problem

Uncertainty in law exists in many forms. The outcome of litigation may depend on any

one of a number of factors including establishing what took place (especially if witness accounts

differ), the possibility that it may settle (being difficult to determine in advance), the possibility

that the plaintiff will drop the case, and the difficulty of applying the law to the facts. These can

perhaps be reduced (but not eliminated) by various means such as mock juries, early mediation,

and contingency fees. The uncertainties involved in litigation are, however, distinct from what

might be called legal uncertainty, which is the problem of determining the legal consequences of

known conduct.

There is no single, agreed definition of legal uncertainty. One might say the law is

uncertain if either or both (1) there is no (near) consensus within the legal community (or among

73
E.g. Lorne Elkin Rozovsky, Legal Aspects of Human and Genetic Engineering, 6 MANITOBA L J 291, 294-95

(1975); JUSTICE MICHAEL KIRBY, THE LAW AND MODERN TECHNOLOGY 12-13 (1982).

74
E.g. Richard H. Hunderwood & Ronald G. Cadle, Genetics, Genetic Testing, and the Specter of Discrimination: A

Discussion using Hypothetical Cases, 85 KY. L.J. 665 (1996-1997).

75
E.g. Nancy Blodgett, Computer Law Quicksand: Pioneers in the Burgeoning Field Have Little to Guide Them,

70(11) A.B.A.J. 32 (1984); Robert P. Bigelow, The Challenge of Computer Law, 7 W. NEW ENG. L. REV. 297

(1985).

76
See, e.g., Frederick A. Fiedler & Glenn H. Reynolds, Legal Problems Of Nanotechnology: An Overview, 3 S. CAL.

INTERDIS. L.J. 593 (1994).

21
reasonable members) 77 as to the legal consequences of particular conduct, 78 or (2) there are

powerful arguments recognizable within the legal system for more than one legal consequence

(however that might be assessed). 79 Because there is no single view of what constitutes sufficient

consensus or what arguments are sufficiently powerful, uncertainty is not a simple dichotomy,

but is rather a scale. There are some situations where the legal consequences can be determined

objectively, others where there might be some dispute but most would agree on the legal

conclusion, and others where it is impossible to decide between multiple answers to a legal

problem. 80 Legal uncertainty is not the same as indeterminacy. A claim that the meaning of a

77
David O. Brink, Legal Theory, Legal Interpretation, and Judicial Review, 17 PHIL. & PUB. AFF. 105, 105-06

(1988).

78
See, e.g., H.L.A. Hart, Problems of the Philosophy of Law, in H.L.A. HART, ESSAYS IN JURISPRUDENCE AND

PHILOSOPHY 88, 106 (1983) (“The clear cases are those in which there is general agreement that they fall within the

scope of a rule.”)

79
See, e.g., Kent Greenawalt, How can Law be Determinate?, 38 U.C.L.A. L. REV. 1, 29 (1990).

80
Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. CHI. L. REV. 462, 472, 494-95

(1987); Kent Greenawalt, How can Law be Determinate?, 38 U.C.L.A. L REV. 1, 86 (1990); Frederick Schauer,

Easy Cases, 58 S. CAL. L. REV. 399 (1985); RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 42-43, 234-35,

254 (1990); Richard A. Posner, The Jurisprudence of Skepticism, 86 MICH. L. REV. 827, 84/ (1988)- Ken Kress,

Legal Indeterminancy, 77 CAL. L. REV. 283, 283 (1989); TIMOTHY A. O. ENDICOTT, VAGUENESS IN LAW (2000).

This proposition is not beyond dispute. See, e.g., Anthony D’Amato, Legal Theory: Aspects of Deconstruction: The

“Easy Case” of the Under Aged President, 85 NW. U.L. REV. 250 (1990); Kenney Hegland, Goodbye to

Deconstruction, 58 S. CAL. L. REV. 1203, 1203-1216 (1985). See also Joseph William Singer, The Player and the

Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 13-19 (1984) (arguing that legal doctrine is largely

indeterminate).

22
rule is uncertain is an epistemic claim; a person can believe that there is only one correct answer

to a problem but be uncertain as to what that answer is. 81 Thus if the meaning of a rule is

indeterminate it will necessarily be uncertain, but the converse does not hold. 82

Uncertainty in law can follow from the difficulty of matching words to their intended

meanings. Words used in legal rules might be ambiguous, vague or contestable. 83 A word is

ambiguous if it can have two vastly different meanings; for example, a bank might be a financial

institution or a river bank. 84 This is rarely a problem for words used in context, as they are in

legal rules, 85 however, as explained below, new ambiguities can arise as a result of technological

change. Words and expressions can be vague, in that one may not know whether to attribute the

term to an object or instance and this not knowing is not due to failure to understand the term or

to ignorance of the facts. 86 In addition, a word or expression might be contestable, in that there is

81
This seems to be the position taken by Ronald Dworkin. See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY xiv,

104, 335-39; RONALD DWORKIN, A MATTER OF PRINCIPLE, 119-45, 153, 162, 171-72; Ronald Dworkin, On Gaps in

the Law, in CONTROVERSIES ABOUT LAW’S ONTOLOGY (Paul Amselek & Neil McCormick eds., 1991).

82
TIMOTHY A. O. ENDICOTT, VAGUENESS IN LAW 95 (2000).

83
Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CALIF. L. REV. 509, 512-14

(1994).

84
Id. at 512.

85
Id. at 515.

86
Id. at 513; H.P. GRICE, STUDIES IN THE WAYS OF WORDS 177 (Cambridge, MA: Harvard University Press, 1989)

at 177 (using the example of not knowing whether a man is bald despite knowing how many hairs he has). This

notion of vagueness is similar to H.L.A. Hart’s concept of open texture and the penumbra of uncertainty surrounding

23
a normative force in determining its meaning and, as a consequence, a history of using it in two

or more different ways. For example, the concept of democracy or personhood is contestable. 87

The use of vague and contestable expressions in a rule may be deliberate. Vague terms might be

used in order to provide flexibility, 88 contestable terms might guarantee that debate takes place

along particular lines, 89 and both vague and contestable terms can allow rule-makers to finesse

their disagreement. In addition, the use of vague and contestable terms may be desirable in order

to prevent citizens from “finely calibrating their action in very close proximity to legal

boundaries.” 90 Ambiguity, on the other hand, offers little advantage.

Uncertainty is not necessarily tied to vagueness and contestability inherent in individual

words. A rule as a whole may be unclear. A ban on vehicles in the park may or may not allow a

legal rules. See H.L.A. Hart, The Separation of Law and Morals, 71 HARV. L. REV. 593, 607-12 (1958); H.L.A.

HART, THE CONCEPT OF LAW 124-154 (2nd ed. 1994).

87
Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CALIF. L. REV. 509, 513

(1994).

88
H.L.A. HART, JHERING'S HEAVEN OF CONCEPTS AND MODERN ANALYTICAL JURISPRUDENCE, IN ESSAYS IN

JURISPRUDENCE AND PHILOSOPHY 265, 269-70 (1983) (“It is a feature of the human predicament, not only of the

legislator but of anyone who attempts to regulate some sphere of conduct by means of general rules, that he labours

under one supreme handicap - the impossibility of foreseeing all possible combinations of circumstances that the

future may bring... This means that all legal rules and concepts are "open"; and when an unenvisaged case arises we

must make a fresh choice, and in doing so elaborate our legal concepts, adapting them to socially desirable ends.”).

89
Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 CALIF. L. REV. 509, 538

(1994).

90
Id. at 536.

24
truck used in war to be used as part of a veterans’ memorial, despite the fact that a truck is

clearly a vehicle. 91 In addition, it is common for two or more conflicting legal rules to apply to

the same situation, 92 for requirements of legal rules to be circular, for legal rules to be based on

distinctions without a difference, and for confusion to arise when the same label refers to more

than one rule. 93 Where a rule is found in the common law, a case may depend on how the

holding of a case is formulated, a process itself mired in choice. 94 Even where there is a

complete legal answer to a legal question based on a particular rule, that rule may be merely

permissive, such that the answer is not required. 95

Given the pervasiveness of legal uncertainty, the degree of concern about uncertainty

arising from new technologies seems peculiar. It is not sufficient to point out that when a

technology is new, there may be no rules about that technology. Oliver Wendell Holmes mocked

a Vermont justice of the peace for stating he was unable to decide a case involving a butter churn

91
It is irrelevant for current purposes whether this is thought of as uncertainty in the rule itself, or uncertainty as to

whether the rule will be ignored in certain situations.

92
Stephen Munzer, Validity and Legal Conflicts, 82 YALE L.J. 1140, 1140-48 (1973).

93
Julius Stone itemized these, referring to them as categories of competing reference, the single category with

competing versions of reference, the category of concealed circular reference, the category of meaningless reference,

and the single category of concealed multiple reference, respectively. See generally JULIUS STONE, PRECEDENT AND

LAW (1985).

94
JULIUS STONE, PRECEDENT AND LAW 32 (1985).

95
John Gardner, Concerning Permissive Sources and Gaps, 8 OX. J. LEGAL STUD. 457 (1988).

25
because there was no law of churns. 96 In fact, in many cases, existing laws will be capable of

disposing of issues involving a new technology without controversy.

2. New Technology as a Cause of Legal Uncertainty

Nevertheless, the problems of uncertainty tend to be compounded when technological

change gives rise to new forms of conduct. The permissibility of conduct relating to new

artifacts, activities, and relationships will depend on the fit between these and existing legal

categories and concepts. In many cases, technological change does not result in anything that

cannot be easily classified. For instance, a passenger car is still a vehicle for the purposes of

existing traffic rules despite the fact that it has electronically operated windows, even though

most traffic rules pre-date this invention. However, in some cases, a new artifact, activity, or

relationship is not easily classified. Examples of legal uncertainty surrounding the introduction

of a new technology are numerous, and can be found in a wide variety of fields.

Transportation by rail was once a new technology giving rise to uncertainty. The ability

to run a vehicle over a track dates from 1676 near Newcastle in England, where coals were

transported by carriages on wooden track. 97 By the late eighteenth century, iron track was used

extensively by owners of coal mines and stone quarries for conveying material short distances. 98

In order to move goods via rail from one place to another, some rights needed to be acquired in

the land over which the rail was laid. The right acquired from the landowner was known as “way

96
Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 461 (1897), reprinted in 78 B.U. L. REV.

699, 702, 712-13 (1998).

97
ISAAC F. REDFIELD, A PRACTICAL TREATISE UPON THE LAW OF RAILWAYS 1 (1858).

98
Id.

26
leave.” 99 There was some uncertainty, at least prior to judicial determination, about the nature of

way leave. In particular, it was unclear whether it was proprietary, thus capable of surviving a

change in ownership, or merely contractual. It was later decided that a covenant to erect a

railway across the land of another in exchange for payment of a toll was proprietary, 100 but not a

covenant to use an existing railway in exchange for payment of a toll. 101 One could hardly say

that this result could have been known in advance. 102

Another example of uncertainty caused by the introduction of railroads can be seen in the

law of Illinois. The question was whether rail lines were analogous to highways or private

property. The choice affected the nature of liability for damage when animals were injured. In

Alton & Sangamon R.R. Co. v. Baugh, 103 the Illinois Supreme Court held that rail lines were not

private property but a form of public thoroughfare. 104 In that case, the decision that rail lines

were public was used to argue that railroads had no obligation to protect their neighbors under

99
Id. at 1-2.

100
Hemmingway v. Fernandes, 13 Simons 228, 60 ER 89 (1842). The judge considered himself bound by Spencer’s

Case, 5 Co. Rep. 31b, which held that a covenant by a lessee to build a wall on the premises was binding between

the lessor and the assignee of the lessee.

101
Keppell v. Bailey, 2 My & K 517, 39 ER 1042, 1048 (1834).

102
Contrary positions were considered arguable by counsel. See Hemmingway, 60 E.R. 89, 92; Keppell, 39 E.R.

1042, 1045.

103
14 Ill. 211 (1852).

104
Id. See also HOWARD SCHWEBER, THE CREATION OF AMERICAN COMMON LAW, 1850-1880 68-69 (2001).

27
the principle of sic utere 105 by constructing a fence. 106 A contrary decision was reached in a

subsequent case, again resulting in a victory for the railroad. 107 In this case, uncertainty led to

inconsistency, and arguably, unfairness in application.

The original drafters of the Federal Rules of Civil Procedure in the 1930s almost certainly

did not foresee the computer age. 108 The original rule on discovery was limited to “documents,

papers, books, accounts, letters, photographs, objects, or tangible things.” By 1970, computers

were in high enough use that it was considered important to resolve the question of whether

electronic data was discoverable. The rule was then amended to explicitly include computer data

in order “to accord with changing technology.” 109 Evidently, it was believed that without the

clarification, the law would be too uncertain. Since the birth of e-commerce, similar uncertainties

have arisen (and been resolved) regarding the status of electronic documents as “writing” and the

status of digital signatures. 110

105
The requirement that an owner of private property use their land so as not to injure another.

106
HOWARD SCHWEBER, THE CREATION OF AMERICAN COMMON LAW, 1850-1880, 68-69 (2001).

107
The Chicago & Mississippi R.R. Co. v. Patchin, 16 Ill 198, 202 (1854). See HOWARD SCHWEBER, THE CREATION

OF AMERICAN COMMON LAW, 1850-1880, 72-78 (2001).

108
National Union Elec. Corp. v. Matsushita Elec. Indus. Co., D.C. Pa. 1980, 494 F. Supp. 1257, 1262 (“It may well

be that Judge Charles Clark and the framers of the Federal Rules of Civil Procedure could not foresee the computer

age.”).

109
48 F.R.D. 487, 527 (1970).

110
See, e.g., Leif Gamertsfelder, Electronic Bills of Exchange: Will the Current Law Recognise Them?, 21(2) U.

NEW STH. WALES L.J. 566 (1998).

28
 The creation of “software” also led to uncertainty as to its classification: as a good or

service (relevant in determining applicability of Article 2 of the Uniform Commercial Code), 111

as a product or service (relevant in determining whether liability for errors in medical computer

programs that cause injury is based on negligence or strict liability), 112 as property (relevant for

laws of theft), 113 as tangible (relevant for tax purposes). 114 With the development of “intelligent”

software, we might also ask whether it is capable of being treated as a person for the purposes of

entering into contract, serving as a trustee, or being sued. 115

111
Scott on Computer Law § 7.09[A] (noting a split of opinion on whether software not sold bundled with hardware

qualifies as goods for the purposes of the UCC). Cases cited that held variously that it is issue of fact, that it is

services and outside UCC, and that it is goods and governed by UCC.

112
Vincent M. Brannigan & Ruth E. Dayhoff, Liability for Personal Injuries Caused by Defective Medical

Computer Programs, 7 AM. J. L. AND MED. 123, 130-34, 144 (1981) (concluding that even specially-designed

medical computer programs will be treated as products); Freed, Products Liability in the Computer Age, 17

JURIMETRICS J. 270, 275-9 (1977) (concluding that it would not be appropriate to treat computer programs as

products); Scott on Computer Law § 15.09[B] (concluding that only software licensed without significant

modification as a standard packaged system is a product, citing Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1036

(9th Cir. 1991).

113
Ward v Superior Court, 2 Computer L. Serv. Rep. (Callaghan) 206, 208 (Cal. Super. Ct. 1972).

114
Note, Sales and Use Tax of Computer Software – Is Software Tangible Personal Property?, 27 WAYNE L. REV.

1503 (1980-81).

115
Tom Allen and Robin Widdison, Can Computers Make Contracts?, 9 HARV. J.L. & TECH. 25 (for purposes of

contract); Leon E. Wein, The Responsibility of Intelligent Artifacts: Toward an Automation Jurisprudence, 6 HARV.

J.L. & TECH. 103 (1992) (for purposes of liability); Lawrence B. Solum, Legal Personhood for Artificial

Intelligences, 70 N.C. L. REV. 1231 (1992) (for purpose of serving as a trustee).

29
 In vitro fertilization is an example of a biomedical technology where similar problems

were encountered. The case of Davis v. Davis involved a dispute between a divorced husband

and wife over what would be done with their cryopreserved embryos. The law could potentially

treated cryopreserved embryos as “children,” whose custody would be determined in the best

interests of the child or as “property,” in which case they would be jointly owned by the

parties. 116 Trial court Judge W. Dale Young found that “human life begins at the moment of

conception” and that the best interests of the child would be served by granting custody of the

embryos to Mary Sue. 117 The Davis case was appealed to the Court of Appeals of Tennessee,

which held that the trial court’s decision violated Junior’s reproductive rights, and ordered that

the parties be given joint control over the embryos. 118 On appeal from that decision, the

Tennessee Supreme Court struck a middle ground between the two positions. 119 Embryos were

neither persons nor property, but were entitled to special respect because of their potential for

human life. 120 Ultimately, therefore, neither analogy was considered appropriate, the court

instead resolving the dispute by balancing the parties’ interests. 121 Prior to Davis v. Davis, there

116.
Davis v. Davis, No. E-14496, 1989 WL 140495 (Tenn. Cir. Ct. Sept. 21, 1989,. at *9.

117
Id. at *9, *11.

118
Davis v. Davis, No. 180, 1990 WL 130807, at *2, *3 n.1 (Tenn. Ct. App. Sept. 13, 1990), at *2-3.

119
Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992).

120
Id. at 597.

121
Id. at 603-04.

30
was real uncertainty as to how disputes over cryopreserved embryos would be viewed. Even

after that case, there have been continuing controversies. 122

In each of these examples, new artifacts, activities and relationships generated by

technological change in diverse fields did not fit easily into existing classifications. In other

cases, there might be no difficulty with classification, but rather issues that arise where a new

artifact, activity or relationship is the first entity to fall within two separate categories. Different

systems of rules, that might never have operated on the same entity, might come into contact for

the first time. This creates the potential for inconsistencies and conflict. The operator of an

elevator, for example, arguably stood in relation to passengers as both occupier and common

carrier. 123 Railroads could be treated as property owners, common carriers, operators of a

dangerous machine, holders of a corporate charter, and providers of a public service. 124 The

Internet shares features in common with different communications technologies, which have

historically been subject to different regulation (and regulators), and combines aspects of

common carriers, broadcasting, and print transactions. 125 Further the outcome of cases involving

the Internet frequently depends on whether the Internet is characterized from the user’s

122
Lyria Bennett Moses, Legal Responses to Technological Change: The Example of In Vitro Fertilization, 6 MINN.

J.L. SCI. & TECH. 505, 612-15 (2005)

123
Haseldine v. Daw, [1941] 2 K.B. 343, 358, 373 (although, in that case, treatment as a common carrier or occupier

did not affect the duty owed).

124
Howard Schweber, The Creation of American Common Law, 1850-1880 78 (2001).

125
Jonathan D. Bick, Why Should the Internet Be Any Different?, 19 PACE L. REV. 41, 55-56 (1998).

31
perspective, as a virtual reality, or from an external perspective, as a physical reality. 126 Patent

law becomes uncertain where new technologies combine aspects of more than one field of

technology, where such fields had previously been treated differently in the caselaw. 127 Where a

new artifact, activity or relationship can be classified in more than one way, incompatible rules

intended to govern different things can both apply, giving rise to uncertainty.

Technologies that cause greater interaction across jurisdictional boundaries can also lead

to uncertainty as to which set of rules is to apply and to inconsistent requirements. These

problems arose in the context of both railroads 128 and continue to arise in the context of the

Internet. 129 Even where technologies do not themselves give rise to greater inter-jurisdictional

126
See Orin S. Kerr, The Problem of Perspective in Internet Law, 91 GEO. L.J. 357, 362 (2003) (“In effect, we not

only have two Internets, but two versions of Internet law.”). See also Brett M. Frischmann, The Prospect of

Reconciling Internet and Cyberspace, 35 LOY. U. CHI. L.J. 205 (2003); Stephanie A. Gore, “A Rose by any other

Name”: Judicial Use of Metaphors for New Technologies, 2003 U. Ill. J.L. Tech. & Pol'y 403, 425-431 (2003)

(discussing the different metaphors which have been used to describe the Internet).

127
Amir A. Naini, Convergent Technologies and Divergent Patent Validity Doctrines: Obviousness and Disclosure

Analyses in Software and Biotechnology, 86 J. PAT. & TRADEMARK OFF. SOC'Y 541, 543 (2004).

128
See James W. Ely, Jr., “the railroad system has burst through state limits”: Railroads and Interstate Commerce:

1830-1920, 55 ARK. L. REV. 933 (2002-2003); Robert L. Rabin, Federal Regulation in Historical Perspective, 38

STAN. L. REV. 1189, 1206 (1986).

129
See, e.g., Michael A. Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16

BERKELEY TECH. L.J. 1345, 1347 (2001) (“Since websites are instantly accessible worldwide, the prospect that a

website owner might be haled into a courtroom in a far-off jurisdiction is much more than a mere academic exercise;

it is a very real possibility.”); BRIAN FITZGERALD ET AL., JURISDICTION AND THE INTERNET 3 [8.1.05] (2004). See

also David R. Johnson & David G. Post, Law and Borders: The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367

32
activity, the ability of people to avoid restrictions on a technology in one jurisdiction by traveling

to another can be a cause for concern. For example, there has been some comment on the issue of

reproductive tourism, whereby people cross borders to avoid restrictions on in vitro fertilization

and surrogacy. 130

Sometimes the problem is not with placing a new artifact, activity or relationship into a

pre-existing category, but rather with the category itself. Some legal categories and concepts

become ambiguous in light of technological change. Consider the example of “mother.” Prior to

the use of in vitro fertilization, a mother (other than in cases of adoption) was the woman who

bore a child and contributed to its genetic identity. They were necessarily the same person.

Following the introduction of in vitro fertilization, it became possible for the concept of

“mother” to fragment 131 into at least two people: the woman contributing an ovum and the

woman gestating and delivering the child. 132 Thus a legal rule giving custody of a child to its

(1996); Macquarie Bank v. Berg, [1999] Austl. Def. Rep. 53-035 (Sup. Ct. N.S. Wales 1999) (refusing to grant an

injunction to restrain defamation because of concerns about variation in defamation laws across jurisdictions).

130
See, e.g., Todd M. Krim, Beyond Baby M: International Perspectives on Gestational Surrogacy and the Demise

of the Unitary Biological Mother, 5 ANN. HEALTH L. 193, 216 (1996).

131
This term is borrowed from Michael H. Shapiro, Lawyers, Judges and Bioethics, 5 S. CAL. INTERDIS. L.J. 113,

118, 130 (1997).

132
Two other women are also possible candidates for motherhood, depending on the circumstances: the woman

raising the child and the woman co-ordinating or intending the child’s conception.

33
“mother,” without further definition, becomes uncertain. A similar split can be observed in the

notion of “author” in the context of computer-generated works. 133

Thus new technology can give rise to new uncertainties; new hypotheticals for the law

school classroom to which there is no clear answer. In other situations, a legal rule might provide

the answer, but this is considered unsatisfactory due to problems of over-inclusiveness, under-

inclusiveness, or obsolescence, all of which are discussed below. In these situations, uncertainty

might result from concern that the rule will be changed prospectively by a legislature or agency,

or retrospectively by courts.

3. The Specialness of Uncertainty Generated by Technological Change

While the above discussion illustrates how new technologies might be a source of legal

uncertainty, it does not indicate what is special about that uncertainty. For that, it is useful to

look at the concept of “open texture” as originally used by Frederick Waismann. 134 Waismann

argued that language has open texture in that no matter how a sentence is crafted, there is always

the ineliminable possibility of vagueness. 135 For example, despite the fact it might seem obvious

what a finch is, it is always possible to confront an example (such as a finch that spontaneously

exploded) that would be difficult to classify. According to Waismann, it would be impossible to

133
See Darin Glasser, Copyrights in Computer-Generated Works: Whom, if Anyone, do we Reward?, 2001 DUKE L.

& TECH. REV. 24 (2001) (discussing copyright in computer-generated fractals). See also John F. Banzhaf III, When a

Computer Needs a Lawyer, 71 DICK. L. REV. 240, 240 (1966-1967).

134
Frederick Waismann, Verifiability, in LOGIC AND LANGUAGE (FIRST SERIES) 122 (Antony G. N. Flew ed. Anchor

ed. 1965).

135
Id.

34
craft a legal rule that was impervious to future uncertainty. The world could always change in

such a way that the rule’s interpretation would be affected.

This is different to the concept of “open texture” employed by H.L.A. Hart. 136 When he

referred to “open texture,” it was to explain the problem of the inherent vagueness of

language. 137 He used the example of the term “vehicle,” which has a core of certainty (functional

automobiles) and a penumbra of uncertainty (bicycles, roller skates and toy automobiles). 138

Using Hart’s notion of “open texture,” a sufficiently thoughtful lawmaker can decrease the

frequency of cases where uncertainty arises. The statute might, for example, define “vehicle” as

including or excluding particular objects. This might increase the law’s certainty at the expense

of its simplicity or it might take too much time to draft, but the balance between certainty and

other factors are within the lawmaker’s control.

136
H.L.A. HART, THE CONCEPT OF LAW ch. VII (1994). See also H.L.A. Hart, Positivism and the Separation of Law

and Morals, 71 HARV. L. REV. 593, 607-08 (1958) (using the term “penumbra” instead of “open texture.”).

Although the metaphor of the penumbra is usually attributed to Hart, it previously appears in the writings of both

Benjamin Cardozo and Glanville Williams. See TIMOTHY A. O. ENDICOTT, VAGUENESS IN LAW 8 (2000). The

difference between Hart and Waismann formulations are referred to in ANDREI MARMOR, INTERPRETATION AND

LEGAL THEORY 132-34 (1992); Michael Moore, The Semantics of Judging, 54 S. CAL. L. REV. 151, 201-02 (1981);

FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-

MAKING IN LAW AND IN LIFE 35-36 n.26 (1991).

137
See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607-08 (1958);

H.L.A. HART, THE CONCEPT OF LAW ch. VII (1994).

138
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 607 (1958).

35
 Thus ordinary uncertainty in law, which can be identified with Hart’s notion of “open

texture,” can be reduced when a law is created, whereas Waismann’s “open texture” cannot.

Where technological change could not have been foreseen at the time a law was created, 139 any

uncertainty arising as a result of that change may be outside the lawmaker’s control. In this

sense, legal uncertainty caused by unforeseen technological change is more problematic than

ordinary legal uncertainty.

C. Legal Rules may be Over-inclusive or Under-inclusive in New Contexts

1. Over-inclusiveness and Under-inclusiveness as a Persistent Problem

In order to understand what is meant by over- and under- inclusiveness, it is necessary to

discuss the relationship between a rule and its purpose or goal. A person crafting a rule will

always have some reason for doing so. In a few cases, the rule might be simply for appearances,

but usually the rule-maker hopes that if people act in accordance with the rule, some goal will be

achieved. In fact, there will often be multiple parallel and sequential goals. For example, the rule

“no vehicles in the park” might be passed because the rule-maker believes that this will reduce

the amount of noise that park-users are exposed to,

139
See Grant Gilmore, On Statutory Obsolescence, 39 U. COLO. L. REV. 461, 467 (1967) (“Our best informed

guesses about what is going to happen next have an uncomfortable habit of missing the mark completely.”); David

E. Nye, Technological Prediction: A Promethean Problem, in TECHNOLOGICAL VISIONS: THE HOPES AND FEARS

THAT SHAPE NEW TECHNOLOGIES 159, 161 (Marita Sturken et al eds., 2004) (referring to a study demonstrating the

common failure of technology predictions made by experts); ALVIN TOFFLER, FUTURE SHOCK 191 (1970) (giving

examples of dramatic failures of technology prediction); Eugene Volokh, Book Review, Technology and the Future

of Law, 47 STAN. L. REV. 1375, 1375-76 (1995).

36
 which will make park-users happy, which will, in turn, increase his chances of retaining

power. In addition, it will help protect the environment, which is (the hypothetical rule-maker

might believe) inherently moral.

But the relationship between the rule and any of these goals may be merely

probabilistic. 140 There will still be noise in the park if people disobey the rule, if a large crowd

gathers for a protest march, or if airplanes regularly fly overhead, amongst other possibilities.

Further, the rule will prevent conduct that would not harm, or might even further, one or more

higher level goals (for example, park-users might be angered at the loss of convenience and

mount a political campaign against those voting for the rule). With respect to a particular goal,

one can ask whether there are circumstances in which its application is not directed to the goal

(over-inclusiveness with respect to that goal) or whether there are circumstances falling outside

its scope where its application would further the goal (under-inclusiveness with respect to that

goal). The hypothetical “no vehicles in the park” rule, like rules in the real world, is both over-

and under-inclusive with respect to each of its goals. Henceforth, I use the term “targeted” to

describe the extent to which a rule is formulated to avoid over- and under-inclusiveness with

respect to a particular goal. A single term is useful in this context because over-inclusiveness and

under-inclusiveness are not necessarily distinct concepts: a rule might be over-inclusive because

another rule (which is an exception to the first) is under-inclusive, or vice versa.

It is, of course, possible to draft a rule that is highly targeted with respect to a single goal

by enacting the goal itself. Thus, rather than prohibiting vehicles in the park, one could increase

140
FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-

MAKING IN LAW AND IN LIFE 28–9 (1991).

37
the probability relationship between the rule and one of its goals by, for example, prohibiting

conduct that creates noise that disturbs other park-users. This would not, however, necessarily

make the rule more targeted when compared against a parallel or higher-level goal. It might, for

example, force cancellation of a planned campaigning event.

Even where a rule has a single or dominant purpose, a rule-maker may choose not to

simply enact the goal itself. The rule-maker might, for example, want to ensure that the rule is

easy to apply, both for those whose conduct is affected and for those who adjudicate cases

involving alleged breach of the rule. As part of this, the rule-maker will want to ensure that the

rule’s meaning can be understood from the text. The rule-maker might also take account of the

fact that citizens usually find it easier to comply with the law if there are fewer rules relating to a

particular class of conduct, 141 these rules require little expertise to interpret and apply, and there

are few decision-making institutions involved. 142 And of course, where there are multiple rule-

makers, as in the case of a legislature, compromise may be necessary. 143 This will not

necessarily mean that the compromise reached cannot be treated as having a goal or purpose. 144

141
See RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 48 (1990); CARLOS E. ALCHOURRÓN & EUGENIO

BULYGIN, NORMATIVE SYSTEMS 78 (1971).

142
See PETER H. SCHUCK, THE LIMITS OF LAW 4 (2000).

143
McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW &

CONTEMP PROBS 3, 16-21 (1994).

144
Id. Cf JEREMY WALDRON, LAW AND DISAGREEMENT 142-146 (1999)

38
 Creating rules that are perfectly clear and easy to apply, yet perfectly targeted is virtually

impossible, and often these factors will need to be traded off against each other. 145 How that is

done is a question for the rule-maker, although others might criticize a rule for over-emphasizing

one of these at the expense of another. 146

2. New Technology as a Cause of Over-inclusiveness and Under-

inclusiveness

As was the case for legal uncertainty, technological change aggravates problems of

targeting. New artifacts, activities and relationships may fall within a rule despite their being

irrelevant to its goals, or may fall outside it despite a clear connection. For example, the rule

stating that vehicles may not drive through a park will include hypothetical “bubble cars” that

create no pollution, make no noise and bounce harmlessly off whatever they hit.147 At the same

time, it may not include hypothetical “hover cars” that generate noise and pollution but fly above

145
Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 70-71 (1983). For instance, it

has been suggested that a clear, but imprecise rule might increase ease of application. See Isaac Ehrlich & Richard

A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Stud. 257, 264-67 (1974). See also GERALD

POSTEMA, BENTHAM AND THE CL TRADITION 447 (“But rules achieve clarity, certainty, and determinateness, at the

price of including either more or fewer cases in the legal categories defined by the rules than the rationale

underlying the rules calls for”); Werner Z. Hirsch, Reducing Law’s Uncertainty and Complexity, 21 U.C.L.A. L.

REV. 1233, 1240 (1974) (on negative consequences of attempting to enhance certainty).

146
See Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 67 (1983).

147
Larry Alexander, All or Nothing at All, in LAW AND INTERPRETATION 357, 378 (Andrei Marmor ed., 1997).

39
the park rather than travel through it. 148 Creative interpretation may be able to solve some of the

problems of targeting, but not all. 149

Those exploring legal issues related to new technologies often draw attention to instances

where existing laws are poorly targeted when applied to new contexts. For example, in her paper

entitled “Accommodating Technological Innovation: Identity, Genetic Testing and the

Internet,” 150 Professor Bernstein explores how the Internet and genetic testing both have the

capacity to change how our perceptions of identity, and in particular the relative dominance of

communitarian and liberal meta-narratives. She is critical of the law’s failure to recognize that

these identity interests have been impacted by genetic testing and the Internet. Existing legal

rules, such as privacy rules, that previously protected identity interests are failing to do so in the

new technological contexts. Professor Bernstein’s complaint about the failure of existing laws to

protect identity interests in the contexts of the Internet and genetic testing can be seen as a

problem of the under-inclusiveness of existing privacy laws, when viewed against the goal of

protecting identity interests.

148
In this sense, Gilmore is wrong to assert that the only problem that a lawmaker should fear is over-inclusiveness.

GRANT GILMORE, THE AGES OF AMERICAN LAW 96 (1977) (“With luck, the statute will turn out to have nothing to

say that is relevant to the new issues, which can then be decided on their own merits.”) In the absence of a rule, the

default norm is permission, not whatever a court thinks it ought to be.

149
GRANT GILMORE, THE AGES OF AMERICAN LAW 97 (1977)

150
Gaia Bernstein, Accommodating Technological Innovation: Identity, Genetic Testing, and the Internet, 57 VAND.

L. REV. 965 (2004).

40
 Another legal problem arising out of new technology that involves under-inclusiveness is

genetic discrimination. Remedies available to victims of discrimination in the Americans with

Disabilities Act (ADA) do not protect victims of genetic discrimination, even though the issue it

addresses is analogous. The ADA prohibits discrimination in an employment context (where

there are more than 15 employees) on the ground that a person has a disability. 151 The definition

of disability is as follows:

The term "disability" means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such

individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment. 152

This clearly protects against discrimination on the basis of an existing impairment, whether or

not it was caused by a genetic disease. However, it may not protect against discrimination on the

basis of pre-symptomatic information regarding one’s genetically determined propensity to a

particular disease. The Equal Employment Opportunity Commission stated in its compliance

manual written in 1995 that the ADA covers discrimination against a person on the basis of pre-

symptomatic genetic information because such discrimination involves “regarding the

individuals as having impairments that substantially limit a major life activity.” 153 However, the

151
42 U.S.C. §§ 12101-17, 12201(c).

152
42 U.S.C. § 12102.

153
Equal Employment Opportunity Commission, Original Compliance Manual, § 902, available at

http://www.eeoc.gov/policy/docs/902cm.html.

41
Commission’s view seems to have been implicitly rejected by the Supreme Court. The Court has

stated that the use of the present indicative verb “limits” means that the ADA does not protect

individuals who face discrimination on the basis of potential disabilities. 154 The “being regarded

as” prong of the definition does not help because it only applies when the employer mistakenly

believes that the individual has a current impairment or mistakenly believes that their impairment

substantially limits one or more major life activities.155 Thus an individual has a remedy if an

employer mistakenly believes that the person’s genetic status is currently disabling but not if

they are concerned about the future health of the employee. A person facing discrimination on

the ground of pre-symptomatic information about a genetic disease might be able to argue that

the ADA applies where their “defective” genes currently limit a major life activity such as

reproduction. This is how people with HIV are able to fall within the protection of the ADA. 156

However, it is not clear whether those with a genetic predisposition would be able to rely on this

argument. 157 While HIV status will always affect a decision to conceive, this is not the case with

all genetic information. For example, there might be no chance (other than through mutation)

that a recessive condition would affect one’s children, although it may reappear in subsequent

generations. Also, embryos might be genetically screened through an in vitro fertilization

154
Sutton v. United Air Lines, 527 U.S. 471, 482 (1999).

155
Id. at 489-490.

156
Bragdon v. Abbott, 524 U.S. 624, 641-42 (1998).

157
The issue was mentioned in Laws v. Pact, Inc., 2000 U.S. Dist. LEXIS 8473 (N.D. Ill. 2000) at *8-9, but the

court did not need to reach a decision. See generally Sheri Mezoff, Note, Forcing a Square Peg Into a Round Hole:

The Negative Ramifications of Misaligned Protection for Predisposed Individuals Under the ADA, 85 B.U.L. REV.

323 (2005).

42
program to avoid passing on the “defective” genes. While not everyone will agree that the ADA

should extend to genetic discrimination, there are many who believe that similar protection

should be available. 158

Railroad lawyers, dealing with the new technology of their time, had experienced similar

problems with targeting. For example, railroads could hardly be expected to make actual delivery

of goods to consignees on their own premises, as was normally the duty of common carriers. 159

In addition, the rule that an easement in gross could not be assigned 160 was a particular problem

for railroads, who often held easements at a distance from their own property. 161 Courts therefore

decided to carve out an exception for easements in gross of a commercial character. 162

Another railroad example can be seen in the history of the rules (fellow servant rule and

assumption of the risk) limiting the liability of employers for employee injuries. The fellow

servant rule was originally used in a simple master-servant context in Priestley v. Fowler. 163 The

judge in that case was concerned that, because the servant was in at least as good as position as

the master to know whether the van was overloaded, a finding of liability on the part of the

master might “be an encouragement to the servant to omit that diligence and caution which he is

158
See supra note 16.

159
JAMES W. ELY, JR., RAILROADS AND AMERICAN LAW 182 (2001)

160
JESSE DUKEMENIER AND JAMES KRIER, PROPERTY 830 (4th ed., 1998).

161
JOHN E. CRIBBET, PRINCIPLES OF THE LAW OF PROPERTY 342 (2d ed. 1975).

162
JESSE DUKEMENIER AND JAMES KRIER, PROPERTY 830 (4th ed., 1998).

163
3 Mees. & Welsb. 1

43
in duty bound to exercise on behalf of his master.” 164 This logic was applied to a railway case in

the United States in Farwell v. Boston & Worcester Railroad, which created the assumption of

risk defense. 165 Chief Justice Shaw pointed to similar concerns in that case, noting that the safety

of all was best ensured by placing liability on the employee, although he also pointed to other

considerations. Even if that was the case on railroads in 1842, the invention of safety devices

such as driver brakes, power brakes and automatic couplers changed the situation. 166 By 1891,

Benjamin Harrison addressed the Senate and the House of Representatives, observing that

consistent deployment of air brakes and automatic couplers would “very greatly reduce the

present fearful death rate among railroad employees.” 167 Yet, in the year 1890, of the 94787 new

freight cars in the United States, only 16287 were equipped with train brakes, and only about a

third were fitted with automatic couplers. 168 It would seem that the railroads, rather than the

employees, were now in the best position to ensure safety. 169 Without legal change, they had

164
Id.

165
45 Mass. 49 (1842).

166
Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Stud. 257 (1974).

167
PUBLIC PAPERS AND ADDRESSES OF BENJAMIN HARRISON 122 (1893).

168
Report No. 1678

169
See St. Louis, Iron Mountain and Southern R.R. Co. v. Taylor, 210 U.S. 281, 295-96 (1908). (“It is quite

conceivable that Congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the

economic loss to the community resulting from them, shnoudl deem it wise to impose their burdens upon those who

could measurably control their causes, instead of upon those who are in the main helpless in that regard.”)

44
little incentive to do so. 170 On this basis, the Federal Railroad Safety Appliances Act of 1893 was

passed to mandate certain safety apparatus and to provide that, where such devices were not

used, an employer would not be entitled to rely on the assumption of the risk defense.

From the field of computing, an example of poor targeting bred of technological change

can be seen in the fate of the business entries exception to the hearsay rule. Under this rule, a

business record was only admissible as evidence without its author appearing as a witness if

(1) the entry was original or the first permanent copy, (2) its author is not available to testify, (3)

the record was based upon the first-hand observation of someone in a position to know the facts

recorded, and (4) the record was made in the usual course of business shortly after the

transaction to which it relates. 171 This rule no longer made sense when business records were

kept in a computer. In a computerized system, records are constantly updated and stored

cumulatively, so that the “original record” is discarded; this brought them outside the business

records exemption. 172 An additional problem was that the computer record itself could not be

produced, only a print-out, usually made especially for trial. 173 When confronted with computer

170
JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND THE

REMAKING OF AMERICAN LAW 31 (2004).

171
C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE §§ 281-88, at 596-606 (1954); E FISCH, NEW YORK

EVIDENCE, § 851, at 410 (1959).

172
John R. Brown, Electronic Brains and the Legal Mind: Computing the Data Computer’s Collision with Law, 71

YALE L.J. 243, 248 (1961-1962) (referring to the relevant rule as “an anachronism”); Rigdon Reese, Admissibility of

Computer-Kept Business Records 55 CORNELL L. REV. 1033, 1035 (1969-1970).

173
Rigdon Reese, Admissibility of Computer-Kept Business Records 55 CORNELL L. REV. 1033, 1035 (1969-1970).

45
printouts that would be rendered inadmissible due to the under-inclusiveness of the business

records exception to the hearsay rule, many courts altered the rule to admit the evidence. 174

3. The Specialness of Over-inclusiveness and Under-inclusiveness

Generated by Technological Change

The above examples show that problems of targeting can arise as a result of a wide

variety of new technologies. These targeting problems that arise as a result of technological

change are qualitatively different from targeting problems that exist at the time a rule is

formulated. Only in the latter case is the poor correlation between a rule and its goal usually

deliberate, perhaps to ensure greater clarity, ease of application, haste, or as part of a

compromise. On the other hand, it is possible that, had the rule’s creator foreseen the new

technology, the rule would have been worded so as to correspond more closely to one of its

goals. For instance, had bubble cars and hover cars been invented when the hypothetical “no

vehicles in the park” rule was enacted, the rule may have been worded differently. Technological

change has the effect of upsetting the balance reached at the time of the rule’s creation.

D. Technological Change Renders Some Laws Obsolete

It has been said that “law must be contemporary to be viable.” 175 Rules that are

considered bad by virtue of their age have been described as obsolescent, 176 anachronisms, 177 or,

174
E.g. King v State ex rel. Murdock Acceptance Corp., 222 So. 2d 393, 397-99 (Miss. 1969); Transport Indemnity

Co. v. Seib, 132 N.W.2d 871, 873-75 (1965).

175
ROBERT E. KEETON, VENTURING TO DO JUSTICE 17 (1969). See also FRANCIS LIEBER, LEGAL AND POLITICAL

HERMENEUTICS 135 (enlarged ed 1839) (“if obsolete laws are not abolished by the proper authority, practical life

itself, that is, the people, will and must abolish them, or alter them in their application”).

176
Grant Gilmore, On Statutory Obsolescence, 29 U. COLO. L. REV 461 (1967).

46
simply, old. 178 The problem of obsolescence has led some scholars to urge judges to be more

willing to abandon old common law, 179 and even statutory, 180 rules and to calls for the creation

of bodies able to direct the cause of law reform. 181 As Felix Frankenfurter commented: “If facts

are changing, law cannot be static. So-called immutable principles must accommodate

themselves to the facts of life, for facts are stubborn and will not yield.” 182

Rules are devised in a particular technological context, with explicit and implicit

assumptions as to what is possible. Traffic rules, for example, are created with assumptions as to

the capacity of automobiles. They can be capable of great speeds which can result in harmful

collisions (thus speed limits are necessary) but not of vertical movement (and thus there no rules

stating how high you can drive).

Technological change may render existing rules obsolete or less useful for different

reasons:

177
Pound, Anachronisms in Law, 3 J. AM. JUDICATURE SOC. 142 (1919).

178
Robert C. Berry, Spirits of the Past: Coping with Old Laws, 19 U. FLA. L. REV. 24 (1966).

179
E.g. ROBERT E. KEETON, VENTURING TO DO JUSTICE (1969); John R. Brown, Electronic Brains and the Legal

Mind: Computing the Data Computer’s Collision with Law, 71 YALE L.J. 243, 243-44 (1961-1962).

180
GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982).

181
E.g. Henry J. Friendly, The Gap in Lawmaking – Judges Who Can’t and Legislatures Who Won’t, 63 COLUM. L.

REV. 787, 802 (1963).

182
THE ZEITGEIST AND THE JUDICIARY IN LAW AND POLITICS: OCCASIONAL PAPERS OF FELIX FRANKFURTER, 1913-

1938, at 6 (1st ed. 1939).

47
 (1) the conduct that was targeted by the rule may have been replaced with new forms of

conduct (such as if teleporters were to replace cars as the primary mode of

transportation);

(2) the invention and diffusion of new technologies may change the underlying facts that

had justified some legal rules (for example, if cars in the future could bounce harmlessly

off one another);

(3) the availability of new technologies may alter the cost of violating and enforcing legal

rules (as where radar detectors 183 help speeders avoid detection). 184

1. Technological Change can Reduce the Importance of Regulated Conduct

A rule implicitly assumes that the conduct it regulates is something that does or could

take place. A rule may thus become obsolete where patterns of conduct have changed so that this

assumption is no longer accurate. For example, the “mailbox rule” in contract law is no longer

required where written communication is usually conducted instantaneously. 185 Although this

may appear harmless, in the sense that the rule will no longer play a role, it can be a problem if

the regulated conduct has been replaced by conduct that causes harm of a type the rule sought to

avoid, but does not fall within the rule itself. An example of legislation that has become less

183
These are now illegal in some jurisdictions. See, e.g., D.C. POL. REG: art. 25, par. 16; VA. CODE § 46.2-1079.

184
A similar categorization appears in David Friedman, Does Technology Require New Law?, 25 HARV. J.L. & PUB.

POL’Y 71, 71 (2001-2002).

185
See Gregory E. Perry & Cherie Ballard, A Chip By Any Other Name Would Still Be a Potato: The Failure of the

Law and its Definitions to Keep Pace with Computer Technology, 24 TEX. TECH. L. REV. 797, 824 (1993).

48
relevant is the Audio Home Recording Act of 1992. 186 This was enacted to ensure that copyright

owners would be compensated for digital copying, which at the time involved digital tapes.

Because it was designed specifically for this context, and not digital copying more generally, it

has failed to provide compensation for the vast amount of digital copying that now occurs

(generally over the Internet). 187 There is no real reason to repeal the Audio Home Recording Act,

but other legislation would be necessary in order to work towards the original goal. Another

example of legislation that no longer plays as important a role as originally envisaged is the

Semiconductor Chip Protection Act.188

2. Technological Change can Undermine the Justification for Legal Rules

As discussed in Part III.C above, a rule will generally be formulated in order to achieve

one or more goals, but will usually be less than perfectly targeted. The link between a rule and its

goals is based on assumptions about the world. For example, the “no vehicles in the park” rule

might be thought to further the goal of allowing users to enjoy the park in peace because vehicles

make noise that disturbs park-users. If some new vehicles are designed that do not make noise, a

186
Pub. L. No. 102-563, 106 Stat. 4237 (1992) (codified as 17 U.S.C. 1001-1010 (2000))

187
See generally Aaron L. Melville, The Future of the Audio Home Recording Act of 1992: Has it Survived the

Millennium Bug?, 7 B.U. J. SCI. & TECH. L. 372 (2001). For a case indicating the limitations of the Audio Home

Recording Act, see Recording Industry Ass’n of America v. Diamond Multimedia System, Inc., 180 F.3d 1072

(1999).

188
Pub. L. No. 98-620, 98 Stat. 335 (1986) (codified at 17 U.S.C. 901-914). See Dan L. Burk, Biotechnology in the

Federal Circuit: A Clockwork Lemon, 46 ARIZ. L. REV. 441, 452 (2004); Morton D. Goldberg, Semiconductor Chip

Protection as a Case Study, in GLOBAL DIMENSIONS OF INTELLECTUAL PROPERTY RIGHTS IN SCIENCE AND

TECHNOLOGY 329, 323 (Mitchel B. Wallerstein et al. eds., 1993).

49
rule banning vehicles in order to eliminate noise is over-inclusive. If all vehicles are designed in

this way, the entire rule may become an anachronism.

While this example may appear far-fetched, rules are often said to be obsolete due to

technological changes that affect the perceived necessity of particular rules. 189 Consider section

1962(5) of the California Code of Civil Procedure, enacted in 1872: “the issue of a wife

cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate.”

The purpose of this provision was presumably to avoid speculation where paternity was difficult

to determine (thus protecting the institution of marriage and the children of that marriage), 190 but

to recognize alternative paternity where the husband could not have been the father. Although we

cannot be sure, the rule seems to assume that impotence and lack of co-habitation are the only

“obvious” ways of knowing that the husband is not the father. But it is easier to exclude paternity

today than it was in 1872. Since the 1930s, blood tests have been used as evidence in paternity

suits 191 and, more recently, DNA tests can determine paternity with a high degree of accuracy.

189
E.g. Cass Sunstein, Problems with Rules, 83 CALIF. L. REV. 953, 993 (1995); CASS SUNSTEIN, LEGAL REASONING

AND POLITICAL CONFLICT 131-32 (1996). Sunstein gives two examples: (1) the development of automated teller

machines and prohibitions on branch banking, and (2) the rise of cable television and regulations designed for a

small number of networks. See also R v. Iby, 63 N.S.W.L.R. 278, [63] (New South Wales, Australia 2005) (“The

born alive rule is, as I have indicated above, a product of primitive medical knowledge and technology and of the

high rate of infant mortality characteristic of a long past era.”)

190
Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65 MD. L.

REV. 246, 256 (2006).

191
John M. Maguire, A Survey of Blood Group Decisions and Legislation in the American Law of Evidence, 16 S.

Cal. L. Rev. 161, 164-65 (1943).

50
The distinction made in the rule (between impotent and fertile men) and the availability of

testing are in tension. 192 In 1980, the rule was changed to allow the husband’s non-paternity to

be determined by blood tests. 193 Of course, it may be appropriate to prevent or limit the ability of

a husband to deny paternity through DNA testing, 194 but this would require development of a

new rationale or balancing of the interests involved. The original rule would be arbitrary in the

modern era.

Another example can be found in the changing technology of radio. Immediately prior to

the enactment of the Radio Act of 1927, interference on radio was common. 195 There was

concern that, without order imposed by law, listeners would hear nothing but noise on their radio

sets. 196 The only technical mechanism for avoiding interference at the time involved transmitting

separate signals on different frequencies. Techniques dating back to the 1940s allow two or more

192
Donald C. Hubin, Daddy Dilemmas: Untangling The Puzzles Of Paternity, 13 CORNELL J. L. & PUB. POL'Y 29,

50 (2003).

193
Stats. 1980, ch. 1310, § 1 (effective September 30, 1980). The rule is currently codified in Cal. Fam. Code §§

7540-41. Other states have made similar amendments. See Donald C. Hubin, Daddy Dilemmas: Untangling The

Puzzles Of Paternity, 13 CORNELL J. L. & PUB. POL'Y 29, 59-60 (2003).

194
See e.g. Jana Singer, Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption, 65

MD. L. REV. 246 (2006).

195
JAMES MORTON HERRING & GERALD C. CROSS, TELECOMMUNICATIONS: ECONOMICS AND REGULATION 246

(1936).

196
DAVID LOTH & MORRIS L. ERNST, THE TAMING OF TECHNOLOGY 127 (1972).

51
transmitters to co-exist on the same frequency without interference. 197 The modern technology

most frequently discussed in this context is spread spectrum, which allows for low power signals

to be sent simultaneously over the same band of frequencies without interference, 198 but there are

other means to share spectrum without interference. 199 Various arguments have been made that

the availability of such technology undermines the justification for government grants of

exclusive rights in the use of particular frequencies. 200 These arguments have been partially

successful and increasing amounts of spectrum have been allocated to commons, rather than

property-based, uses. 201 Arguably, we should go further. 202 It is also arguable that, despite the

availability of new technologies, private ownership is still optimal. 203 However, it is difficult to

deny that technological change has reduced the primary rationale for the current regime of radio

regulation and that re-evaluation is desirable.

197
Kevin Werbach, Supercommons: Toward a Unified Theory of Wireless Communication, 82 TEX. L. REV. 863,

874 (2004).

198
See, e.g., LAWRENCE LESSIG, THE FUTURE OF IDEAS chh 5, 12 (2001).

199
Id. at 874, 898-99.

200
Id. at 875-76.

201
Id. at 878.

202
See generally id.

203
See Stuart Minor Benjamin, Spectrum Abundance and the Choice Between Public and Private Control, 78

N.Y.U.L. REV. 2007 (2003).

52
 An older example can be found in the invention of barbed wire. 204 At common law, the

owner of an animal was liable for damage caused on another’s land. Because the right of drovers

to use the open range were considered important, some state legislatures passed fencing-out

statutes, declaring that farmers and other landowners could only recover for damage caused by

rampaging cattle if they had erected a lawful fence of material and dimensions calculated to

prevent the entrance of cattle. The introduction of barbed wire turned the intention of this statute

on its head. Once it was cheap to fence large tracts of land, statutes designed to allow animals to

range no longer had that effect. Ultimately, the farmers, who had lost in the legislature,

prevailed.

In each of these examples, the rule became obsolete because, at some level, a goal it was

meant to serve has become redundant. It is no longer necessary to distinguish between men who

could not be fathers and men who are not fathers, to divide up the radio spectrum, or to allow

animals to roam over unfenced private land (there being little of it left). Changing technology

can also lead to policy shifts on a larger scale. For example, it has been argued that

improvements in technology generally have enhanced arguments for free enterprise policies. 205

3. Technological Change can Reduce Cost-Effectiveness

Laws may also be described as obsolete where technological change has made them

prohibitively difficult to enforce. Arguments have been made that traditional copyright laws are

204
This example is cited in G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 243-44 (1982).

205
The HALF LIFE OF POLICY RATIONALES: HOW NEW TECHNOLOGY AFFECTS OLD POLICY ISSUES (Fred E.

Foldvary & Daniel B. Klein eds. 2003). The book gives numerous examples of how technology has reduced

transaction costs, increased complexity, and reduced centralization and the need for monopolies.

53
obsolete due to the introduction and increased use of the Internet, 206 that rules banning the use of

drugs in sporting competitions cannot withstand the introduction of undetectable drugs, 207 and

that ordinary wiretapping statutes are insufficient in light of telecommunications advances. 208

E. Summary of Part III

There are thus four different types of legal problems that might arise in a context of

technological change. These, together with subcategories, can be set out as follows:

1. The need for special rules to deal with a new situation;

2. Uncertainty as to how the law applies to new forms of conduct, in particular:

(a) uncertainty as to how a new activity, entity or relationship will be classified;

(b) uncertainty where a new activity, entity or relationship fits into more than one

classification, so as to become subject to different, conflicting rules;

(c) uncertainty in the context of conflicts of laws;

206
E.g. John Kelsey and Bruce Schneier, The Street Performer Protocol and Digital Copyrights, First Monday, June

1999. Enhanced copyright regimes, such Digital Millennium Copyright Act, are less susceptible to these problems,

although are only effective due to the inability of most users to break through the protection measures.

207
Examples of supplements that have been undetectable, at least temporarily, are tetrahydrogestrinone, human

growth hormone, and erythropoietin. See http://en.wikipedia.org/wiki/Tetrahydrogestrinone; David Galluzzi, The

Doping Crisis in International Athletic Competition: Lessons from the Chinese Doping Scandal in Women's

Swimming, 10 SETON HALL J. SPORTS L. 65, 93 n. 222 (2000).

208
New York Times, March 27, 1992, A19; New York Times, April 19, 2002, at § 4, p 2. See, now, the

Communications Assistance for Law Enforcement Act, 47 U.S.C. §§ 1001-1010 (2006).

54
 (d) uncertainty where an existing category becomes ambiguous in light of new

forms of conduct;

3. Over-inclusiveness and under-inclusiveness (also described as problems of targeting in

new contexts);

4. Obsolescence, where:

(a) conduct regulated by an existing law is no longer important;

(b) a rule can no longer be justified; or

(c) a rule is no longer cost-effective.

These categories connect the legal problems encountered in the context of technological change

in very different industries, from transportation and medicine through to computing and

communications. Although similar problems exist in the absence of technological change, there

is an important difference. When laws are generally too unclear, poorly targeted, irrelevant, or

inefficient, the blame can be placed on the lawmaker. Where technological change intervenes,

lawmakers might be accused of responding too slowly but not necessarily of having made an

initial error. This also distinguishes our reaction to technological change from our reaction to

changes in information, behavior, and cultural norms. 209

209
See generally Lyria Bennett Moses, Why Have a Theory of Law and Technological Change, (2007) MINN. J.L.

SCI. & TECH. (forthcoming).

55
IV. THE IMPOSSIBILITY OF TECHNOLOGY NEUTRAL DRAFTING AND THE NEED
FOR A BROADER INSTITUTIONAL APPROACH

The classification set out in Part III will be used in this Part to discuss the notion of

technological neutrality in law. Technological neutrality is often seen as a positive feature of

legislation – being independent of any particular technology ensures the law will apply

effectively and fairly in different technological contexts. However, the use of seemingly

technology neutral language will not always achieve this goal, at least in areas where

technologies are evolving. Instead, this Part presents an alternative vision, the design of a legal

system better able to operate in a world of constantly shifting technology. This is not simply a

question of how legislation is worded and structured, but rather requires a broader institutional

approach. In order to create a legal system that operate effectively in a world of rapidly evolving

technology, the roles of administrative agencies, courts and law reform bodies are crucial. Thus

only when technological neutrality is reconceived as a property of systems of law, rather than as

a characteristic of particular statutes, does it become an achievable objective.

A. The Goals of Technological Neutrality

It is often stated that, generally speaking, 210 laws should be drafted in a technology-

neutral way, especially where they are intended to fulfill a broadly conceived goal. What is less

210
Technological neutrality is not necessarily a good thing: Alberto Escudero-Pascual & Ian Hosein, The Hazards of

Technology-Neutral Policy: Questioning Lawful Access to Traffic Data, 47 COMMUNICATIONS OF ACM 77 (2004).

There may also be situations where technology neutrality is not an appropriate goal. As the Earl of Northesk stated

during the House of Lords debate on the Regulation of Investigatory Powers Act 2000: “One of the many difficulties

I have with the Bill is that, in its strident efforts to be technology neutral, it often conveys the impression that either

it is ignorant of the way in which current technology operates, or pretends that there is no technology at all.”: UK

Hansard, HL, 28 June 2000, Col. 1012.

56
clear is precisely what this involves or how it might be achieved. Of the more than four hundred

articles referring to technology-neutral laws, 211 few consider the ambiguity involved in this

expression and discuss how technology-neutral lawmaking might be achieved. 212

Where the term “technology neutral” is employed, it is usually in the context of either of

two benefits that “technology neutral drafting” is seen to confer. First, technology-neutral

legislation would not unfairly or inefficiently discriminate between technologies. In other words,

legislation should not treat different technologies differently if the rationale behind the

legislation would apply equally to each technology. In the language of Part III, laws should not

be over-inclusive or under-inclusive with respect to a particular technology. Secondly,

technology-neutral drafting might be seen as having broader benefits. As well as being well-

targeted, technology-neutral legislation ought not to become obsolete merely because technology

has changed. Further there ought to be no difficulty in deducing how its provisions apply merely

because the technological context has changed. In this second sense, technological neutrality

aims to avoid uncertainty, poor targeting and obsolescence as the technological context evolves.

211
A search on LexisNexis on June 11, 2006 in the category of US and Canadian Law Reviews for “technolog! w/2

neutral” found 506 articles, of which exactly one hundred used those terms in a different context.

212
Two articles that consider the issue of technological neutrality in some detail are Bert-Jaap Koops, Should ICT

Regulation be Technology-Neutral, in BERT-JAAP KOOPS ET AL EDS., STARTING POINTS FOR ICT REGULATION.

DECONSTRUCTING PREVALENT POLICY ONE-LINERS, 9 IT & LAW SERIES 77 (2006); Ysolde Gendreau, A

Technologically Neutral Solution for the Internet: Is it Wishful Thinking, in COPYRIGHT IN THE NEW DIGITAL ERA:

THE NEED TO REDESIGN COPYRIGHT (Irini A. Stamatoudi & Paul L.C. Torremans eds., 2002).

57
 B. Drafting Techniques Cannot Always Avoid Discrimination between Technologies

Technological neutrality is often used to describe statutes that do not confer an advantage

on one technology where equivalent alternatives exist. Used in this sense, technology neutrality

involves non-discrimination between competing technologies. 213 The merits of technology

neutrality in the sense of non-discrimination between competing (or potentially competing)

technologies is most frequently discussed in the contexts of telecommunications regulation 214

and electronic signature legislation. 215

According to a policy of non-discrimination, one would treat different technologies

equally provided that there are no relevant differences between them, but discriminate on the

basis of relevant difference. Discrimination on the basis of relevant difference may require

statutes to adopt technology-specific language. For example, due to differences in costs, it is

213
The federal government of Australia committed itself to a technologically neutral approach to e-commerce

regulation on this basis. Explanatory Memorandum, Parliament of the Commonwealth of Australia, House of

Representatives, Electronic Transactions Bill, 1999 (Austl.), available at

http://www.aph.gov.au/parlinfo/billsnet/1e99131.pdf ("technology neutrality means that the law should not

discriminate between different forms of technology").

214
E.g. Douglas C. Sicker, The End of Federalism in Telecommunication Regulations?, 3 NW. J. TECH. & INTELL.

PROP. 130, 149-150 (2005).

215
E.g. Adam White Scoville, Clear Signatures, Obscure Signs, 17 CARDOZO ARTS & ENT. L.J. 345, 373-74 (1999).

58
arguably appropriate to restrict the sending of unsolicited faxes to a greater degree than the

sending of unsolicited emails. 216

Crafting a rule that treats comparable technologies the same requires parity between the

formulation of a rule and its goals. The difficulty of achieving this can be seen in the following

hypothetical example. Consider a rule in the following form:

All vehicles sold within the jurisdiction must be fitted with ABS braking technology

A hierarchy of goals for such a rule might look something like this:

Because it is important that vehicles can stop quickly in different weather conditions

Because it is better if there are fewer accidents on the roads

Because it is important that fewer people die on the roads

Because it is important that fewer people die

Because human life is valuable

Avoiding discrimination between existing technologies is relatively straightforward.

There are in existence different types of technologies that can be used to achieve short stopping

distances. There is no reason to favor one of these (ABS brakes) over any other, provided the

other technologies are relevantly the same (in this case, are able to stop within the same distance

216
Bert-Jaap Koops, Should ICT Regulation be Technology-Neutral, in BERT-JAAP KOOPS ET AL EDS., STARTING

POINTS FOR ICT REGULATION. DECONSTRUCTING PREVALENT POLICY ONE-LINERS, 9 IT & LAW SERIES 77 (2006)

(citing 47 U.S.C. § 227).

59
in similar weather conditions). 217 Thus, rather than mandating ABS brakes, one can draft a series

of rules in the following form:

All road vehicles sold within the jurisdiction must be able to come to a complete stop

from a speed of x within y meters on a road containing z mm of water.

This rule does not on its face discriminate between braking technologies; rather, it evaluates each

according to performance. Care must still be taken when choosing the required stopping

distances for different conditions that one does not give preference to a particular technology by

default. 218 For example, one braking technology might be particularly good under a certain

condition, while performing relatively poorly in other conditions. Where existing technologies

are known, it will be possible to draft a sensible but fair set of requirements.

Laws of this type are not original, and many have argued for performance-based

standards rather than design-based standards in order to achieve fairness and economic efficiency

through non-discrimination between technologies. The argument is frequently made, for

example, in the context of laws aimed at reducing pollutants in the air. 219

217
See, e.g., Jennifer A. Manner, Achieving the Goal of Universal Access to Telecommunications Services Globally,

13 COMMLAW CONSPECTUS 85, 100 (2005).

218
See Richard B. Stewart, Regulation, Innovation, and Administrative Law: A Conceptual Framework, 69 CAL. L.

REV. 1256, 1268-69 (1981).

219
E.g. Byron Swift, How Environmental Laws Work: An Analysis of the Utility Sector's Response to Regulation of

Nitrogen Oxides and Sulfur Dioxide Under the Clean Air Act, 14 TUL. ENVTL. L.J. 309, 390 (2001).

60
 While this may assure that existing technologies are treated fairly, it will not be enough to

ensure fair treatment of future, as yet unknown technologies. 220 Suppose now that a company

develops a car which does not have very efficient brakes, but which protects its passengers and

other road-users differently. For example, the car might “bounce” harmlessly off any object with

which it comes into contact. Or it might be equipped with a radar that gives earlier warning of

potential hazards. Such vehicles might satisfy the same ultimate goal of preserving human life

without satisfying the immediate requirement, which is based on ability to stop quickly.

The difficulty is that, even moving up the ladder of abstraction, it is possible to imagine

technologies that will not be treated fairly with respect to a higher level goal. For example,

assume the law was drafted thus:

All road vehicles sold within the jurisdiction must be tested to ensure that no harmful

collision with a stationary object can occur if the object becomes visible to a driver

heading towards it at a distance of y meters, where the driver is driving at x speed and

the road has z mm of water.

One needs to enter the realms of science fiction to see technologies that might not be treated

fairly under such a law. Cars that maneuver in three dimensions from Back to the Future,

beaming technology from Star Trek, or technology that allows one to pass through a solid object

from Stargate: SG1 would not be covered by the rule despite the fact that it might still be

important to ensure that such technologies are safe.

220
See Richard B. Stewart, Regulation, Innovation, and Administrative Law: A Conceptual Framework, 69 CAL. L.

REV. 1256, 1281 (1981).

61
 The only way to guarantee technology-neutrality, in the sense that new technologies will

be treated fairly, is to enact a law whose level of generality corresponds with the highest level

goal that the lawmakers wish to achieve. However, a rule such as:

All must act so as to preserve human life

is ridiculous for other reasons. In particular, it is subject to possible disagreement about how this

goal is to be prioritized against other goals (such as all must act so as to maximize economic

efficiency or all must act so as to enhance overall health and wellbeing). It is unlikely to have a

significant practical effect on manufacturers in the automobile industry, who are unlikely to

design safer cars in response to such a loose standard.

Thus, while it may be possible to avoid discriminating among known technologies, it will

not always be possible to avoid discrimination against future, unknown technologies. This is not

to say that it is never possible to do so. Some goals are meaningful and operable at very high

levels of generality. For example, rules limiting accumulation of market power are likely to treat

unforeseen technologies fairly. 221 However, as was clear from the above example, not all goals

can be achieved through such general rules.

C. Drafting Techniques Cannot Always Make Laws “Future Proof”

A second context in which technology neutral laws are thought to be desirable is their

ability to continue to operate effectively as technology evolves. In other words, technology

neutrality can be a device used to withstand the range of problems encountered in Part III.

Despite the fact that technology-neutrality in this sense involves great ambition, it has been

221
Marcus, J. Scott, "Beyond Layers" (May 9, 2006). Available at SSRN: http://ssrn.com/abstract=901477.

62
employed by scholars and in the political context. 222 Technology-neutrality in this second sense

is broader than the goal of non-discrimination, but includes it. In the language of Part III, the

non-discrimination standard corresponds to the need to ensure laws are neither over-inclusive nor

under-inclusive in new contexts.

Merely ensuring non-discrimination, as hard as this might be, is not enough to ensure that

law applies efficiently and fairly in new technological contexts. In order to future-proof such

laws, it would also be necessary to draft rules that are unlikely to become uncertain or obsolete in

new contexts. Of course, law makers will not want all laws to apply equally to new, unforeseen,

situations. In some circumstances, it might be appropriate to carefully limit legislation to ensure

it only deals with a limited problem involving a particular technology or industry. 223 Future-

proofing such laws might simply involve ensuring that they are not over-inclusive, thus covering

situations for which they were not intended. Where different lawmakers within one lawmaking

222
Michael A. Geist, Is There a There There? Toward Greater Certainty for Internet Jurisdiction, 16 BERKELEY

TECH. L.J. 1345, 1359 (2001) (“'Technology neutral" in this context refers to statutory tests or guidelines that do not

depend upon a specific development or state of technology, but rather are based on core principles that can be

adapted to changing technologies.”) This seems to have been the aim of Congress in S. Rep. No. 102-294, at 36

(legislation designed to avoid “Congress from having to revisit this issue almost annually in order to keep pace with

the rapidly changing technological world.”). A similar point is made in White House Report, US Framework for

Global Electronic Commerce of 1997, at 4 (“government attempts to regulate are likely to be outmoded by the time

they are finally enacted, especially to the extent such regulations are technology-specific.”)

223
Lionel Bently, Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia, 38 LOY.

L.A. L. REV. 71, 175-76 (2004). See also Dan Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV.

1575, 1630-38 (2003) (discussing whether there is a need for different treatment for different industries in patent

law).

63
body have different goals in mind, a technologically-specific solution may be the only

compromise. In those circumstances, legislators at least need to be aware of the (perhaps

relatively small) costs of compromise.

Even where future-proofing is both desirable and politically attainable, it remains

difficult. The difficulty is that the path of technological change is clouded in mystery. 224 Vast

resources would be required if a government were to seek to predict this path, and there are no

guarantees that even experts will get it right. It is difficult to make laws future-proof without

predicting the future. In addition to the problems raised above in relation to over-inclusiveness

and under-inclusiveness, there are problems with avoiding future uncertainty and future

obsolescence.

As explained in Part III.b, uncertainty can arise in different ways, including: (1) it may

not be clear whether a new entity, activity or relationship falls within an existing category; (2) a

new entity, activity or relationship may fall into more than one category, giving rise to

inconsistent rules; and (3) an existing category may become ambiguous in light of new

possibilities. Problems of the second and third types are inherently difficult to prevent, even with

forward-planning and the avoidance of technology-based terminology in legislation. The third

can only be fixed by predicting the future; one can hardly imagine a lawmaker in 1800

questioning rules referring to “mother” on the ground that it might one day become possible for

one woman to carry another’s genetic child. The second would not only require an equivalent

degree of foresight to prevent, but would also assume the lawmaker was familiar with the entire

range of laws in the jurisdiction.

224
See supra note 139.

64
 The first problem, ensuring that classifications and categories retain a clear meaning in

new contexts, cannot be entirely eliminated, but it can be reduced. On some occasions, there are

reasons for drafting laws with inherently vague terms such as “property,” “goods,” and

“tangible.” The legislature may deliberately intend the expression to be interpreted by others,

such as courts or agencies. On other occasions, however, there is no intention to be vague, but

rather a word is used as shorthand for conveying another concept. For example, words such as

“highway” and “document” are used as shorthand for describing a potentially broader concept. In

the context of a particular statute, highway might be used to describe a public route and

document to describe a preserved communication. At the time the legislation is drafted, the

shorthand expressions might seem to cover the whole field, so that the longer forms are

laborious. It is a difficult, but possible, exercise to unpack language in this way, if not in each

section of legislation, then in a definition provision. Alternatively, a more general term can be

defined in a definition section, accompanied by a non-exclusive list of examples. 225 It does not

require predictions as to the future, rather careful choice of words.

Thus there are statutory drafting techniques that can help prevent future uncertainty.

Nevertheless, it is impossible to draft legislation that is entirely insulated against all types of

potential future uncertainty. Reducing obsolescence faces similar problems.

There are three bases on which rules could become obsolete, namely (1) the regulated

conduct may no longer be important; (2) the reason why rules were enacted may no longer apply,

and (3) rules may become less cost-effective. The first problem is irrelevant unless the conduct

225
See Richard W. Downing, Shoring Up the Weakest Link: What Lawmakers Around the World Need to Consider

in Developing Comprehensive Laws to Combat Cybercrime, 43 COLUM. J. TRANSNAT'L L. 705, 716-19 (2005).

65
has been replaced by other conduct that ought to be treated the same way, but falls outside the

terms of existing rules. This equates to a problem of under-inclusiveness. The third problem is

difficult to resolve without predicting the path of technological development.

The second problem is best analyzed in terms of hierarchies of goals, discussed above.

High level goals, such as preserve human life or improve economic efficiency are relatively

immune to waves of technological change. They may be more or less prominent in the socio-

political sphere, but they are unlikely to be directly affected by mere invention. The sorts of

goals that become obsolete are lower-level goals, such as “ensure no two stations transmit on the

same radio frequency.” The higher level goal, “avoid interference between transmitting stations”

is still important, but now this can be achieved through more than one path. There was only one

route to achieve it, however, in 1927 when the Radio Act was passed. At that time, technological

neutrality could not have been achieved at the same time as operational effectiveness. 226 This is a

similar problem to that encountered in attempting to avoid discrimination between technologies.

In conclusion, it would seem that there are some techniques that might be used to

promote technological drafting. Where there is concern to make laws future-proof, they should

be drafted in terms of the highest level goal at which the law is operationally effective. Further,

terminology that is only contingently synonymous with the object intended should be avoided or

clarified in a definition. These techniques will only minimize difficulties associated with

226
See generally JAMES MORTON HERRING & GERALD C. CROSS, TELECOMMUNICATIONS: ECONOMICS AND

REGULATION (1936).

66
technological change, they will not avoid them. 227 It is possible to be overconfident about the

benefits of technology-neutral drafting. 228

D. The Role Played by Administrative Agencies in Enhancing Adaptability

As illustrated above, it is often impossible to draft a rule that will be both operationally

effective and immune from problems related to technological change. To solve these problems, it

is necessary to move beyond the over-simplified model of lawmaking as statutory drafting. Thus

far, I have assumed a single rule-maker (or rule-making body) creating rules in statutory form.

Modern systems of government, however, are significantly more complicated than this. 229

Legislation does not exist in isolation but as part of a broader government network, largely made

up of administrative agencies. 230 The lawmaking function is clearly not restricted to a single law-

making entity.

This does not mean that the above analysis is irrelevant. Wherever there are rules,

however they may be enacted, there is potential for uncertainty, targeting errors and

obsolescence. A rule promulgated by an agency is subject to the same potential problems in new

technological contexts as a rule enacted by a legislature. A rule promulgated by a legislature is

227
Bert-Jaap Koops, Should ICT Regulation be Technology-Neutral, in BERT-JAAP KOOPS ET AL EDS., STARTING

POINTS FOR ICT REGULATION. DECONSTRUCTING PREVALENT POLICY ONE-LINERS, 9 IT & LAW SERIES 77 (2006).

228
E.g. David Friedman, Does Technology Require New Law?, 25 HARV. J.L. & PUB. POL’Y 71, 85 (2001-2002) (“If

legal rules are defined in sufficient breadth, legal innovation is never necessary”).

229
See generally EDWARD L RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE

(2005)

230
EDWARD L RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE ch 2 (2005)

67
subject to the same potential problems whether it is directed primarily to a government entity (in

Professor Rubin’s terminology – it is intransitive) or to its ultimate target (in Professor Rubin’s

terminology, it is transitive). 231 A statute allocating resources or granting jurisdiction to an

agency can become uncertain, poorly targeted or obsolete as a result of technological change. 232

Uncertainty can also arise where multiple agencies end up having overlapping jurisdiction as

what were different technologies converge. 233

However, the existence of more complex rule-making structures makes a difference to

the impact of these problems. An agency, especially an agency equipped with technical experts,

is able to make changes to outdated rules more quickly than a typical legislature.234 Thus,

although the same problems will arise in a multi-level government, they are easier to contain. A

legislature can enact high-level rules, leaving operational details to another level of government.

To return to the example in Part IV.B.1 above, although the legislature may wish to have

more control over the ultimate operation of the rules than a law providing that “All must act so as

to preserve human life,” it need not get into the level of operational detail. It might, for example,

create an agency to enact appropriate safety regulations. Something like “X Agency may

promulgate regulations to ensure the safe design of vehicles sold within the jurisdiction.” This

231
Edward L Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 381 (1989).

232
Edward L Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 369 (1989).

233
See generally PANEL ON TECHNOLOGY ASSESSMENT OF THE NATIONAL ACADEMY OF SCIENCES, TECHNOLOGY:

PROCESSES OF ASSESSMENT AND CHOICE IV.B.3 (1969).

234
CORNELIUS M. KERWIN, RULEMAKING: HOW GOVERNMENT AGENCIES WRITE LAW AND MAKE POLICY 30-31

(3rd ed 2003)

68
intransitive rule is not immune from targeting problems or future obsolescence. For example, the

agency will have no authority to provide for safe travel by means other than vehicles. However,

the delegation is less likely to run into problems than the operational rules set out in Part IV.B.1.

In this scenario, those operational rules (or their equivalents) would be promulgated by an

agency. If problems arise due to unforeseen circumstances, the agency will usually be in a better

position than a legislature to ensure the rules are promptly updated. A legislature can thus reduce

the impact of problems arising as a result of technological change by enacting intransitive laws

in terms of a relatively high-level goal and avoiding micro-management. 235

There are two difficulties with this approach, both of which are only sketched here. First,

there is a small possibility that laws enacted in terms of a high-level goal will constitute an

unconstitutional delegation of power. 236 The failure of the Supreme Court to strike down laws on

this basis in recent times makes this unlikely (but nevertheless possible). Secondly, laws enacted

in general terms with broad delegation might be criticized as inappropriate or illegitimate. The

argument presented here combines with the argument put forward by Professor Rubin to

illustrate the inappropriateness of such criticism in a modern state. 237

Express delegation to agencies thus allows a legislature to avoid the potential serious

consequences of an enactment becoming obsolete, over-inclusive or under-inclusive. It is,

235
Edward L Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 399, 410, 414 (1989).

236
David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?, 83 MICH. L. REV. 1223, 1252-

1260 (1985); David Schoenbrod, Goals Statutes or Rules Statutes: The Case of the Clean Air Act, 30 UCLA L. REV.

740 (1983).

237
Edward L Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 415-16 (1989).

69
however, implied delegation to agencies that most effectively reduces the problems of

uncertainty. Thus the well-known Chevron doctrine reduces the impact of uncertainty in the

context of legislation. 238 Under this doctrine, an agency may be authorized (expressly or by

implication) to resolve ambiguities by choosing between possible interpretations of a statute. 239

The agency’s interpretation of a rule will then bind the courts. Certainty is thus re-established

with greater speed than would be the case if interpretation were left entirely in the hands of a

court. 240 The Chevron doctrine has its limits, described by Professor Sunstein as “Step Zero”

problems. 241 For example, an agency may have minimal discretion where there is ambiguity in

the grant of jurisdiction itself. 242 However, most uncertainties in legislation managed by an

administrative agency can be resolved efficiently.

Administrative agencies have an important role to play in designing a legal system able to

adapt to ongoing technological change. By using administrative agencies, legislatures can draft

legislation at a relatively high level, delegating operational detail elsewhere. This minimizes the

conflict outlined in Part IV.B above. The incidence of targeting problems and obsolescence can

be reduced. The Chevron doctrine also allows uncertainties to be resolved efficiently. However,

238
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S. Ct. 2778 (1984).

239
Id. at 843-44.

240
Cass R. Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 YALE L.J. 2580, 2595

(2006).

241
Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006).

242
Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989 (1999). See

also generally Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187 (2006).

70
there remain some problems. In some circumstances, a legislature may wish to retain some

control over the design of a regulatory scheme. To the extent such control is retained, future

problems of targeting and obsolescence remain. While Chevron allows for many uncertainties to

be resolved by administrative agencies, they will not always have the power or the will to do so.

Not all legislation is administered by an agency. Even where legislation is administered by an

agency, that agency will have little power to resolve uncertainties in a grant of jurisdiction.

Further, where a technology comes under more than one agency’s jurisdiction, it is beyond the

power of any single agency to resolve the conflicts that result. Thus problems of uncertainty,

poor targeting and obsolescence may still come before the courts.

E. The Role of Judges in Enhancing Adaptability

Judges, as interpreters of common law rules, statutory rules and administrative

regulations, have an important role to play in ensuring that the legal system adapts well to

technological change. The best means of enhancing legal flexibility in a context of ongoing

technological change is to adopt a purposive approach to interpretation. 243 This avoids some of

the targeting problems encountered with a more textual approach and provides guidance where

laws are uncertain. It is also superior to an alternative proposed by Guido Calabresi. 244 Calabresi

proposed permitting judges to effectively repeal outmoded legislation. While this would avoid

the problem of obsolescence, it overestimates the role that this type of problem plays in the

context of technological change.

243
See generally Arthur Cockfield, Towards a Theory of Law and Technology, 30 MANITOBA L.J. 383 (2004).

244
GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982)

71
 1. Purposive Interpretation Increases Flexibility in the Context of
Technological Change

Both common law and statutory rules can be interpreted either rigidly or flexibly, with

varying degrees of weight given to their underlying purposes. A judge applying a rule rigidly

will enforce the rule without considering whether such application is in line with the rule’s

purposes, whereas a flexible judge will seek to preserve the rule’s intended effect in spite of its

wording. 245 A judge adopting a purposive approach in dealing with cases involving new

technologies is more likely to reach the result that would have been reached at the time of the

rule’s creation had the future been foreseen.

The potential of a flexible interpretative approach is even more powerful in the context of

common law rules. 246 Common law decision-making carries within it the potential to avoid

problems of over- and under- inclusiveness. 247 Common law rules, for example, can be treated as

245
See Arthur Cockfield, Towards a Theory of Law and Technology, 30 MANITOBA L.J. 383 (2004) (using the terms

“conservative” and “liberal” in place of “rigid” and “flexible”); Lawrence Lessig, Fidelity in Translation, 71 TEX. L.

REV. 1165 (1993).

246
See generally, Lyria Bennett Moses, Adapting the Law to Technological Change: A Comparison of Common Law

and Legislation, 26(2) U. NEW S. WALES L.J. 394 (2003).

247
See RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 247 (1990); RONALD DWORKIN, TAKING RIGHTS

SERIOUSLY 110-12; TWINING AND MYERS, HOW TO DO THINGS WITH RULES 267, 319 (2nd ed. 1982); Roscoe Pound,

What of Stare Decisis?, 10 FORDHAM L. REV. 1, 7-8 (1941); EDWARD H. LEVI, AN INTRODUCTION TO LEGAL

REASONING 2 (1948); HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE

MAKING AND APPLICATION OF LAW 126 (William M. Eskridge & Philip P. Frickey eds. 1994) (stating that the “ratio

decidendi is not imprisoned in any single set of words; and this gives it a flexibility which the statute does not

have”); JEREMY WALDRON, LAW AND DISAGREEMENT 78-79 (1999). This may explain why the benefits of common

72
applicable only in those situations where such application is consistent with the rules’

justifications. 248 Common law rules are formulated through a process of comparing fact

situations and are only strictly binding where the material facts in the precedent cases and the

instant case are shared or the differences between them either (1) are deemed irrelevant by virtue

of other precedents or (2) do not justify different treatment when considered in the context of the

rule’s purpose. 249 If a new situation arises where application of a rule would not be consonant

with the judge’s understanding of the rule’s purpose, it is open to the judge to distinguish the

new case. And the converse applies if the purpose could be furthered by the rule’s extension “by

analogy” to a new situation. The judge deciding the scope of a common law rule need not be

greatly concerned with the precise form of words in which the rule had previously been

articulated. However, while the potential of common law rules in this context may be great, it

law over statutory regulation have been noted in scholarship in the areas of both Internet law and biomedical law:

e.g. ROGER B DWORKIN, LIMITS: THE ROLE OF THE LAW IN BIOETHICAL DECISION MAKING (1996); Suzanna Sherry,

Haste Makes Waste: Congress and the Common Law in Cyberspace, 55 Vand. L. Rev. 309 (2002); Note, Thomas K.

Richards, The Internet and Decisional Institutions: The Structural Advantages of Online Common Law Regulation,

10 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 731 (2000).

248
FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-

MAKING IN LAW AND IN LIFE 178 (1991).

249
See EDWARD H LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1949); Cass R Sunstein, Commentary: On

Analogical Reasoning, 106 HARV. L. REV. 741, 745 (1993). See also Scott Brewer, Exemplary Reasoning:

Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV. 925 (1996)

(describing the process of common law reasoning by analogy as comprising (1) abduction which is the search for an

analogy-warranting rule, (2) confirmation which involves a kind of reflective equilibrium between the proposed

rule, prior examples, and rationales for the proposed rule, and (3) application).

73
will not necessarily result in better outcomes. 250 Common law rules can become fossilized, in

some times and places more than others. 251 In particular, there can be a tendency to treat a new

entity as part of an old category without thinking through the consequences of that

classification. 252 Flexibility in interpretation is thus even more important in the common law

context than in the statutory context, where other considerations might apply.

Use of the purposive approach to interpretation varies across judges, epochs or

jurisdictions. The view has been expressed, for example, that flexibility in interpretation is

largely a matter of judicial temperament. 253 Other writers have opined that courts in the

nineteenth century were more willing than courts in the eighteenth century to view rules from

functional or purposive perspective, 254 and that American courts are more willing to do so than

English courts. 255 Given this diversity, it is worthwhile encouraging the purposive approach in

those contexts where it is under-utilized.

250
See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-

MAKING IN LAW AND IN LIFE 179-80 (1991).

251
P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW 418-19 (1987). Peter M.

Tiersma, The Textualization of Precedent, SSRN Research Paper No. 2005-6 (2005).

252
Monroe E. Price & John F. Duffy, Technological Change and Doctrinal Persistence: Telecommunications

Reform in Congress and the Court, 97 COLUM. L. REV. 976, 1012 (1997).

253
See RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 48-49, 298 (1990) (expressing the view that flexibility

in this regard was a question of judicial temperament).

254
MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860 3 (1977).

255
See generally P.S. ATIYAH & ROBERT S. SUMMERS, FORM AND SUBSTANCE IN ANGLO-AMERICAN LAW (1987).

74
 2. Assessing Calabresi’s Proposal as a Solution to Problems Posed by
Technological Change

The slow pace of legislative response to obsolescence 256 was behind Guido Calabresi’s

suggestion that courts ought to treat statutory rules in the same way as they do common law

rules, effectively repealing them when they fail to achieve their purposes or no longer fit in the

legal landscape in light of changing conditions. 257 Calabresi felt that courts ought to be even

more willing to do this in circumstances of rapid technological change. 258 Calabresi’s proposal

was heavily criticized, but many of those criticisms were based on empirical assumptions. 259 For

example, some critics believe that the problem of obsolescence is relatively small compared to

256
Calabresi’s concept of obsolescence is different to the one used here, and in particular it it was not limited to

obsolescence resulting from technological change. He regarded a statute as obsolete if (1) it no longer “fit” with the

“current legal landscape,” and (2) it has (in the court’s view) ceased to enjoy majority support.

257
GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 82, 164 (1982). See also GRANT GILMORE, THE

AGES OF AMERICAN LAW 97 (1977).

258
GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 7, 46, 73 (1982).

259
Commentary on Calibresi’s approach includes Samuel Estreicher, Review Essay, Judicial Nullification: Guido

Calabresi's Uncommon Common Law for a Statutory Age, 57 N.Y.U. L. Rev. 1126 (1982); Abner J Mikva, Book

Review, The Shifting Sands of Legal Topography, 96 HARV. L. REV. 534 (1982); Robert Weisberg, Essay, The

Calabresian Judicial Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213 (1983). In support of

Calabresi’s proposal, see Dan Rosen, A Common Law for the Ages of Intellectual Property, 38 U. MIAMI L. REV.

769, 828 (1984).

75
the likelihood of judicial error in assessing whether a statute is obsolete and the loss of

legitimacy involved in enhancing judicial power at the expense of legislatures. 260

It is thus crucial to Calabresi’s proposal that obsolescence was a serious problem

requiring drastic measures. However, it seems unlikely that the problems with which Calabresi

was concerned would be sufficiently significant to outweigh concerns about extending judicial

power. The problem he was addressing only resolves a small proportion of problems arising as a

result of changed circumstances. A judicial power to repeal statutes would only resolve problems

related to obsolescence (discussed in Part III.D above). A power to repeal statutes that are

redundant (Part II.D.i) is not very useful. Courts are poorly equipped to consider repeal of

statutes on the ground that they are no longer cost-effective (Part II.D.iii). This leaves situations

where the justification for a rule has failed (Part II.d.ii), which are rare and only within judicial

competence where the goal of a statute is clear.

F. The Role of Law Reform Organizations in Creating a Future-Proof System

of Laws

Even if laws are drafted with the need for future adaptability in mind, agencies are used

to provide operational details and interpretive assistance, and courts adopt a purposive approach

to interpretation, laws may nevertheless become uncertain, over-inclusive, under-inclusive or

260
Hutchinson & Morgan, Calabresian Sunset, 82 COLUM. L. REV. 1752 (1982); Mikva, The Shifting Sands of Legal

Topography (Book Review), 96 HARV. L. REV. 534, 541 (1982); Samuel Estreicher, Judicial Nullification: Guido

Calabresi's Uncommon Law for a Statutory Age, 57 N.Y.U. L. REV. 1126, 1129 (1982); Weisberg, The Calabresian

Judicial Artist. Statutes and the New Legal Process, 35 STAN. L. REV. 213, 257 (1983). The concept of legitimacy

has been criticized: EDWARD L RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN

STATE ch 5 (2005).

76
obsolete. Also, none of the techniques discussed above will ensure that appropriate laws are

passed to deal with new situations; there were no traffic laws before the invention of the wheel.

Thus it is important to monitor both law and technology to ensure a good fit. This is a role that

can be played by public or private law reform organizations or scholars proposing reform.

There is nothing in this article that would contribute to an intelligent choice as to the type of

body that ought to be responsible for advising the government as to what is necessary in order to

keep the law up to date. It does, however, suggest how such a body might go about completing

its task. An understanding of why the law struggles to cope with technological change gives rise

to an algorithm for predicting legal problems that could result from a new technology. The

algorithm would look something like this:

1. List all of the new things, activities and relationships enabled by the new technology and,

if relevant, any old things, activities and relationships that have been superseded; 261

2. Ask whether any of these things, activities or relationships ought to be banned or

restricted (in the view of the person performing the algorithm or a person with a given set

of values and preferences);

3. List all the common law and statutory rules applying in a given jurisdiction and, to the

extent they can be determined, the goals or purposes of each;

4. For each rule for which the goals can be guessed, ask whether part of the reason why the

rule furthers its goal (or does so cost-efficiently) is either the existence of superseded

261
See, e.g., Lyria Bennett Moses, Legal Responses to Technological Change: The Example of In Vitro Fertilization,

6 MINN. J.L. SCI. & TECH. 505, 514-15 (2005).

77
 things, activities or relationships or the non-existence of new things, activities or

relationships;

5. For each rule and each new thing, activity or relationship, ask whether the rule applies

and note any uncertainties;

6. For the rules that do not apply, ask whether it would be in accordance with each of the

rule’s purported purposes that it should apply;

7. For the rules that do apply, ask whether this is in accordance with each rule’s purported

purposes.

Performing this rigorously might take a professional life-time, but experience will usually be

sufficient to narrow the range of rules worth examining in the context of a particular

technological change. For example, an examination of securities regulation may be unnecessary

to a person studying the legal ramifications of genetic testing. Of course, not everyone

performing the algorithm will reach the same conclusions; disagreement on such matters as

which of a statute’s goals are the most important will lead people to different conclusions as to

whether the statute ought to be repealed, amended or left alone. Yet it is a fairly reliable means

of flagging the legal issues likely to arise and the arguments that will be made in response to a

particular technological change. Even if the algorithm is not performed in its entirety, it provides

a useful checklist for those considering the consequences of a particular technological change in

a particular area of the law.

The above algorithm can also help law reform organizations get a sense of the scope of legal

problems generated by a particular technological change. There is a tendency, especially in the

early years of a particular technology, to think that existing law is completely inappropriate in

78
the new context. 262 Others argue that the problem is overstated and that new problems can be

resolved in existing frameworks. 263 People have taken position on both sides of the question in

areas such as the handling of genetic information 264 and communication over the Internet. 265

There were even different positions taken on the effects of railroading on law. 266

The algorithm proposed above creates a means of quantifying any lack of fit between

existing legal rules and a new technology. Completing the exercise for a given technology and

262
E.g. David R Johnson and David Post, Law and Borders: The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367

(1996); John Perry Barlow, A Declaration of the Independence of Cyberspace (1996), available at

http://www.eff.org/~barlow/Declaration-Final.html (in relation to the Internet).

263
See Monroe E. Price, The Newness of New Technology, 22 CARDOZO L. REV. 1885, 1888, 1896 (2001) (“It is

much less the case that technological change eliminates either the need for law or reduces the capacity for

establishing and enforcing norms to nothingness.”); Richard A. Epstein, The Static Conception of the Common Law,

9 J. LEGAL STUD. 253, 254 (1980) (“Social circumstances continually change, but it is wrong to suppose that the

substantive principles of the legal system should change in response to new social conditions”).

264
Compare George J. Annas, Genetic Privacy: There Ought to be a Law, 4 TEX. REV. L. & POLITICS 9, 9-13 (1999)

and Ronald M. Green & Mathew Thomas, DNA: Five Distinguishing Features for Policy Analysis, 11 HARV. J.L. &

TECH. 571 (1998) with Douglas H. Ginsburg, Genetics and Privacy, 4 TEX. REV. L. & POLITICS 17, 22-23 (1999).

265
Compare David R Johnson and David Post, Law and Borders: The Rise of Law in Cyberspace 48 STAN. L. REV.

1367 (1996) and Lawrence Lessig, The Path of Cyberlaw 104 YALE L.J. 1743, 1744–5 (1995) with Joseph H.

Sommer, Against Cyberlaw, 15 BERK. TECH. L.J. 1145, 1148 (2000) and Frank H. Easterbrook, Cyberspace and the

Law of the Horse, 1996 U. CHI. LEGAL F. 207 (1996). See also Jonathan D. Bick, Why Should the Internet Be Any

Different?19 PACE L. REV. 41 (1998); I. Trotter Hardy, The Proper Legal Regime for “Cyberspace”, 55 U. PITT L.

REV. 993 (1994).

266
Compare comments in supra note 20 with ALAN LESLIE, THE LAW OF TRANSPORT BY RAILWAY 1 (2nd ed. 1928).

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area of law will allow one to get a sense of the scope of the problems raised. Some might still

perceive these problems as greater than others, but it will avoid excessive hype where that is

unjustified.

It will also flag arguments for law reform purporting to be based on the need for revision in

light of technological change, but in fact based on other considerations. In other words, it will

indicate when a lawmaker uses technological change as an excuse to change a rule he or she does

not like. 267 This will allow observers to distinguish arguments for law reform based on a need to

keep the law up to date from ordinary arguments dressed up in the language of obsolescence. Of

course, there is nothing wrong with technological change provoking critical examination of

existing legal problems. 268 But knowing whether technological change has itself upset the legal

balance can help to evaluate arguments for legal change.

V. CONCLUSION

This article has sought to understand and classify the types of legal problems that result

from technological change. There are four reasons why the law might be called on to change in

response to changing technology: (1) there may be a need to create special rules designed to ban,

restrict, encourage, or co-ordinate use of a new technology, (2) there may be a need to clarify

how existing laws apply to new artifacts, activities and relationships; (3) the scope of existing

267
See Richard A. Epstein, The Static Conception of the Common Law, 9 J. LEGAL STUD. 253, 256-65 (1980) (citing

examples of cases where a judge treated a rule as obsolete and discarded it despite the fact that no social change

affected the justification for the original rule).

268
See, e.g., Jennifer S. Geetter, Coding for Change: The Power of the Human Genome to Transform the American

Health Insurance System, 28 AM. J.L. AND MED. 1 (2002).

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legal rules may be inappropriate in the context of new technologies; and (4) existing legal rules

may become obsolete. Many changes in technology will cause no problems at all, while others

may only give rise to some of the above problems. Yet examples of each type of problem can be

found in the context of diverse technologies.

Employing this classification, it was possible to demonstrate the fallacy in approaching

the question of technological neutrality purely as an issue of statutory drafting. Unless one is

prepared to deny operational effectiveness to many laws, drafting techniques alone cannot

prevent some laws from operating poorly in a rapidly changing technological environment.

Rather than focusing on the need for technology-neutral legislation, we need to consider how the

legal system deals with dilemmas raised by technological change in a broader institutional

context. The role played by administrative agencies, courts, and law reform bodies in helping the

law adapt to technological change is crucial.

Our metaphors of law struggling to keep pace with technology reflect an important truth

– as technology changes, legal dilemmas arise. As technological change becomes increasingly

rapid, the need for a methodical approach to these problems becomes increasingly urgent. We

need to closely analyze the role of different legal institutions and the methodologies they adopt

in easing the law’s transition to the future.

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