Law&Tech Digital Papers on the Web

This section refers to scholarly authored Digital Papers freely available on the web. These papers takle several aspects of the relationship between Law and Technology, both in general perspectives and in more issues-specific dimensions. On the whole, they witness the growing emergence of a vast body of international literature concerning the Law & Technology topic.

You are welcome to download them by visiting the external links listed below.

Bert-Jaap Koops

Tilburg University – Faculty of Law (TILT)

Ten Dimensions of Technology Regulation – Finding Your Bearings in the Research Space of an Emerging Discipline

Available at SSRN: http://ssrn.com/abstract=1633985

DIMENSIONS OF TECHNOLOGY REGULATION, pp. 309-324, M.E.A. Goodwin et al., eds., Nijmegen: WLP, 2010
Tilburg Law School Research Paper No. 015/2010

Abstract:      

We are at the start of what may be emerging as a new discipline of academic study: technology regulation, the study of how technologies are or should be regulated. With a broad definition of technology (the wide range of tools and crafts that people use to change or adapt to their environment) and of regulation (the intentional influencing of someone’s or something’s behaviour) this is a wide-ranging and complex field indeed. To get a grip on this emerging field, we need theoretical grounding. So far, few attempts have been made to map the space in which regulators and researchers who deal with technology regulation move. This chapter provides a first, essayistic attempt at comprehensively mapping the space of the emerging field of technology regulation by distinguishing and describing the ten dimensions that together span up this space. Starting with technology-related dimensions (type of technology, degree of innovation, place, and time), it moves on via regulation-related dimensions (type of regulation, normative outlook, and knowledge) to research-related dimensions (discipline, problem definition, and frame). The articulation of technology regulation as a ten-dimensional space is an analytic tool that may help us to understand what this emerging discipline is about, how it approaches its research, which known unknowns need to be researched, and to get an intuition of the unknown unknowns that await us out there when we further travel in technology regulation research space.

Keywords: technology, ICT, biotechnology, nanotechnologies, regulation, law, research

Abstract:     

This Article seeks to begin a discussion on the development of legal analysis that broadly considers the interplay between law and technology. Part I provides background on the need for the development of this theory, which could draw from and inform traditional legal scholarship that studies discrete areas of technology law like intellectual property law. Part II scrutinizes cases and policy decisions within three non-traditional areas of technology law – contracts, tax, and privacy – to show how legal analysis in light of technological change can be broken down into two broad categories: (1) a ‘liberal’ approach that is more sensitive to the ways that technological change affects interests, while often seeking legal solutions that are less deferential to legal precedents and traditional doctrine; and (2) a ‘conservative’ approach that relies more on traditional doctrinal analysis and precedents. Part III elaborates on general principles of analysis that can be drawn from the liberal approach, which: (a) recognizes that the interplay between law and technology is complex and interactive; (b) requires flexible legal solutions when it is determined that technological developments are undermining interests (“law is technology“); (c) recognizes that the direct regulation of technology provides opportunities to indirectly regulate behaviour to promote optimal social policy (“technology is law”). In summary, the liberal approach scrutinizes whether, given current or anticipated technological settings, a legal rule will promote the attainment of policy objectives (“is the legal rule scientific?”). Part IV offers tentative observations on the ways that a law and technology theory can provide insight into the whole law by revealing that, for instance, during times of technological change the entire law adapts by becoming a more flexible and forward-looking system. A downside of this transformation is that the liberal approach destabilizes the law by undermining the usefulness of precedents, making it more difficult for lawyers to predict the outcome of cases for their clients.

Keywords: Law, technology, cyberlaw, intellectual property, legal theory, privacy, contracts, tax