STRUCTURING TECHLAW.

• Author: Crootof, Rebecca

TABLE OF CONTENTS I. INTRODUCTION 348 II. TYPES OF LEGAL UNCERTAINTIES 356 A. Artifacts, Actors, and Activities 357 B. Application Uncertainties 359 1. Legal Gaps 360 2. Legal Overlaps 361 3. Framing Gaps and Overlaps 364 C. Normative Uncertainties 366 1. Underinclusion 367 a. Types of Underinclusion 368 b. Underinclusion Issues 369 2. Overinclusion 370 a. Types of Overinclusion 371 b. Overinclusion Issues 373 3. Evolving Aims 375 D. Institutional Uncertainties 376 III. APPROACHES TO LEGAL UNCERTAINTIES 379 A. The Permissive Approach 380 B. The Precautionary Approach 384 IV. RESPONSES TO LEGAL UNCERTAINTIES 387 A. Techlaw Analogies 387 1. Multifaceted Roles 389 2. Legally Salient Characteristics 391 3. Selecting the Framing 393 B. Extend Extant Law 395 1. Dangerous Analogies 396 2. Analogical Entrenchment 398 C. Create New Law 399 1. "Future-Proofing" the Law 400 2. Design Flexibility 401 a. Geographic Scope and Form 402 b. Implementation 403 3. Content Flexibility 405 a. Tech-Neutral Rules 408 b. Tech-Specific Rules 411 D. Reassess the Regulatory Regime 413 V. CONCLUSION 416 I. INTRODUCTION

The legal community constantly grapples with technologies that enable new conduct or facilitate previously rare actions, blur established legal categories, diffuse or centralize capabilities, and expose the limits of existing regulatory institutions. A host of techlaw questions follow as these tech-fostered changes upend doctrinal rules, shift power relationships, and inflame deeper social tensions. (1)

The conventional approach is to tackle these quandaries by identifying something about a technology or its use that is "exceptional" and argue that this distinction necessitates new law or even a new legal regime; (2) or, alternatively, that a lack of exceptional characteristics implies that the technology can be adequately governed by extant rules. (3) But while these focused studies are individually useful, the exceptionalist approach fosters siloed and potentially incomplete analyses, ma s ks the repetitive nature of the underlying questions, and thereby results in the regular reinvention of the regulatory wheel. (4) At best, a compartmentalized assessment is a missed opportunity. At worst, it leads to ineffective, counterproductive, or even harmful rules and policy prescriptions. An overarching methodology--one which can be employed across time, technologies, and legal subjects--is needed. (5)

The fundamental challenge of techlaw is not how to best regulate novel technologies, but rather how to best address familiar forms of legal uncertainty in new sociolegal contexts. (6) Shifting our focus from the particular details of any given technology to the legal uncertainties technological development generates allows us to begin framing out a methodological structure for resolving them.

Based on this reorientation, we construct a three-part framework (depicted in Figure 1), designed to encourage a more thoughtful resolution of structural techlaw questions. It (1) delineates the three types of tech-fostered legal uncertainty, which facilitates recognizing common issues; (2) emphasizes the import of a considered selection between adopting a permissive or precautionary approach in responding to an uncertainty, given their differing distributive and regulatory consequences; and (3) highlights techlaw-specific considerations when employing analogies and extending extant law, creating new law, or reassessing a legal regime. (7) In this endeavor, we are deeply indebted to the innumerable scholars who are wrestling with particular manifestations of techlaw problems, (8) who have developed generalizable techlaw principles within specific legal fields, (9) and who are also explicitly working to better articulate the broader, ongoing relationship between law and technology. (10) Many of their insights appear as scaffolding in our structure.

To resolve a legal uncertainty, a legal actor must first identify which kind it is. (11) Part II delineates the three main kinds of tech-fostered legal uncertainties: (1) application uncertainties, which raise the question of whether and how extant law applies; (2) normative uncertainties, which arise when the law is arguably unable to accomplish its aims; and (3) institutional uncertainties, which exist when there are questions about different regulatory entities' relative authority, competence, and legitimacy to apply and update the law. (12) Our focus on legal uncertainty emphasizes that there is nothing particularly special about new technologies and no need to distinguish certain technologies as "exceptional" (13) or their usage as "legally disruptive." (14) Instead, all technologies can raise all three types of legal uncertainties as social circumstances and uses change. (15)

The second step--consciously evaluating the legal regime's and legal actor's underlying assumptions about how to best regulate technological development before going forward--is often ignored, but it has critical distributive and path-setting consequences. Part III presents the spectrum of approaches to tech-fostered legal uncertainties, ranging from more permissive to more precautionary stances. In addition to the usual regulatory concerns associated with balancing innovation and risk in the face of the unknown, (16) we emphasize these approaches' often under-considered implications. We employ public choice theory and a political-economy analysis to demonstrate how a more permissive or precautionary stance shifts the burden of rulemaking between those who profit from a technology and those harmed by it. The size, concentration, and political power of these respective groups will impact their ability to mobilize for change, which in turn shapes the likelihood that initial regulatory missteps will be corrected. By differentiating this often-unconscious step, we hope to encourage legal actors to engage in a more thoughtful evaluation of the associated tradeoffs and consequences.

The third step requires weighing the strengths and limitations of traditional regulatory responses--stretching extant law, creating new law, and reassessing the regulatory regime--with an awareness of their attendant techlaw issues. Part IV begins with a discussion of the varied roles of techlaw analogies and how rhetorical framings of analogical choices may promote different regulatory responses. When analogies are employed to extend old rules, legal actors must understand, articulate, and regularly reexamine those choices to avoid inappropriate entrenchment. When new law is warranted, lawmakers will need to balance stability and flexibility both in how a rule is designed and in what it governs, particularly in the selection between relatively tech-neutral or tech-specific formulations. And when tech-fostered changes introduce complexities, blur categories, and pose questions that expose the limits of existing modes of regulation, we may need to reassess the entire regulatory regime.

By outlining a taxonomy of tech-fostered legal uncertainties, regulatory approaches, and responsive legal strategies, (17) we provide a shared language and common structure for intra- and cross-subject discussion. Too often, people working on techlaw issues talk past each other; we have all seen the failure of communication that occurs when one conversant is focused on an application uncertainty ("Are Uber drivers 'employees'?") and the other is focused on a normative uncertainty ("Does classifying Uber drivers as 'employees' lead to fair and efficient outcomes?"). (18) Recognizing that these questions operate at different levels helps avoid miscommunications that might derail otherwise productive conversations and alliances. (19)

Additionally, being able to situate a particular techlaw question within a broader framework helps us better understand the fundamental issues, better evaluate the likely effectiveness of different legal responses, and better conduct tech-specific and subject-specific analyses. For example, there are obviously different concerns associated with having human beings in the loop in content moderation, medical, and military decision-making processes. But there is also much to be gained by considering the shared application, normative, and institutional uncertainties that arise in all three contexts. (20) Stepping back makes it easier to learn from the rich history of prior dilemmas and anticipate future issues, allowing us to learn from the past and each other and to ma ke more just and effective decisions going forward. (21)

This framework also emphasizes the possibility of purposeful intervention in the iterative and co-constructive relationship between law and technology. Each legal uncertainty is an opportunity for a legal actor to shape the further development of the law, and every resolution of that uncertainty--regardless of how apparently simple or excruciatingly difficult--impacts how the law evolves. While a legal actor's influence is most apparent when a new law is created or an older one invalidated, a decision to maintain the status quo can have equally influential implications and broader ripple effects for the distribution of power.

Admittedly, every opportunity to consciously and intentionally shift the path of legal evolution is bounded. On the front end, the known unknowns of a technology's possible beneficial or negative social effects may chill regulatory action; meanwhile the technology's architecture, the established legal structures, and the procedural and institutional constraints on different legal actors limit the range of possible action. (22) On the back end, due in part to the speed of technological development and its impact on social norms, legal actors may only have a short period to make determinative regulatory moves before path dependence, lock-in, and stabilization make shifting the course of both law and future technological development more difficult. (23)

But despite these constraints, law...