Law and Technology: Two Modes of Disruption, Three Legal MindSets, and the Big Picture of Regulatory Responsibilities

This article introduces three ideas that are central to understanding the ways in which law and legal thinking are disrupted by emerging technologies and to maintaining a clear focus on the responsibilities of regulators. The first idea is that of a double disruption that technological innovation brings to the law. While the first disruption tells us that the old rules are no longer fit for purpose and need to be revised and renewed, the second tells us that, even if the rules have been changed, regulators might now be able to dispense with the use of rules (the rules are redundant) and rely instead on technological instruments. The second idea is that the double disruption leads to a threeway legal and regulatory mind-set that is divided between: (i) traditional concerns for coherence in the law; (ii) modern concerns with instrumental effectiveness; and (iii) a continuing concern with instrumental effectiveness and risk management but now focused on the possibility of employing technocratic solutions. The third idea is one of a hierarchy of regulatory responsibilities. Most importantly, regulators have a ‘stewardship’ responsibility for maintaining the ‘commons’; then they have a responsibility to respect the fundamental values of a particular human social community; and, finally, they have a responsibility to seek out an acceptable balance of legitimate interests within their community. Such disruptions notwithstanding, it is argued that those who have regulatory responsibilities need to be able to think through the regulatory noise to frame questions in the right way and to respond in ways that are rationally defensible and reasonable. In an age of smart machines and new possibilities for technological fixes, traditional institutional designs might need to be reviewed