Technology Ethics & The Legal Landscape
Key Questions and Takeaways
How can technology change what the law should be?
Under what circumstances should the law be changed by changing technology?
Natural Law vs. Realism
Natural Law:
There is some objectively correct/best/true understanding of what legal rules should be.
Over time, the law is improving itself towards the goal of perfecting what the law is (achieving the state of perfected natural law).
Often carries tones of morality or even religious values.
Law should be reasonable or logically consistent.
In the 1800-1900s, the defining theory was that law was thought to be a natural science.
Oliver Wendell Holmes:
"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."
Comparison of Legal Philosophers
Holmes: The purpose of law is to reflect some social purposes or values, especially the values of certain communities (i.e., rural vs. urban, rich vs. poor).
Pound: Sociological Jurisprudence.
What does science tell us the law should be?
What does sociology in particular tell us what the law should be?
There are objective realities that restrain what the law CAN be, but they don't necessarily tell us what the law SHOULD be.
Fuller: Law has an internal morality that limits what it can be and is procedurally focused. Law must follow good processes.
Legal Positivism
Refers to positing or putting forth an idea.
Law is a human creation and is not based on or constrained by some objective fact or external morality. Rather, it is defined by people for human needs.
Oliver Wendell Holmes, an early legal realist, was a legal positivist. Most legal realists are legal positivists.
Problems with Legal Positivism
Does that law need to apply to the sovereign (i.e., the King, the legislature, whoever is creating the law)?
Much of what we think of as the law reflects norms (act reasonably). If the theory of law is that they are commands made by a sovereign, that doesn't apply to a vast swath of what we think of as law.
Not all laws create obligations or impose sanctions.
Why Legal Positivism is Useful
This pushes us away from the idea that law is limited to rules that are generated from the government.
This pushes us away from the idea that law is necessarily about logic or morality alone.
Technology can create or change the rules that govern society.
Law and "Law"
Lessig's Four Forces:
Law
"If you litter in the park, you get fined "
Norms
As a society, we can establish norms shaming those who litter or praising those who clean up litter.
Market
cent/bottle refund for returning recyclable bottles
Incentives for people to collect garbage, or hire someone to clean up the garbage
Architecture
Put garbage cans in convenient places.
Design the park in order to make it easy not to litter or reduce the amount of littering that happens.
Don't allow people to carry bags in the park (through architecture, law, or norms)
Law and Morality
Lon Fuller:
Inner Morality of the Law:
Putting aside the substance of the law, there are elements of any law or legal process that are necessary in order for a society to accept the law that the society creates.
Laws need to be sufficiently general, publicly promulgated, prospective, minimally clear and intelligible, free from contradictions, possible to obey, etc.
Society will reject immoral laws even if they satisfy Hart's criteria
A Technological View:
If we were to adopt a rule today that allows the use of a technology, and years from now we realize that the technology that the rule allows is harmful, we are likely to find a way to punish those who developed/used the technology even when it was legal.
Example: Opioid Crisis - Sackler Family
Even though everything they did was generally considered legal at the time, retrospectively, their actions were found to be highly problematic and legally culpable.
Recovering Law's Meaning
Legal Process: Two Core Ideas
Institutional Competence:
which legal or regulatory institution is best positioned to be making certain decisions (e.g., judges vs. legislators vs. regulatory agencies).
Reasoned Elaboration:
We should design processes and rules that require Congress, or agencies, or the President, or courts to go through a structured process of gathering information from interested parties, making decisions based on that information, and explaining how they used that information to the world.
Critical Legal Scholars
Concerned with identifying the injustices that we can actually find in the law and forcing us to reconcile the injustices with what the law is.
Themes:
Law is politics and politics is law
Realist and positivist views
Law is never neutral
Overall View:
We improve the law by critically studying it and identifying and advocating for those who are harmed by it.
Critical Legal Scholars: Critiques
Largely, and arguably only critical. It only identifies problems and doesn't necessarily have the tools for or care about providing solutions.
Tends to be very value based and overtly rejects the need to reconcile tradeoffs (i.e., Trolley Problem).
Law and Economics
People respond to incentives and we can use the law to create incentives for people to act in ways that are good for society or to not act in ways that are bad for society.
Tends to not focus on fault (who caused it, who is to blame), but rather what could have been done to avoid it.
Core Critiques of Law and Economics
Law and economics tends to maximize efficiency and the overall wealth of society and therefore does not focus or care about distributive concerns.
Tends to maximize wealth over time, which is going to increase and exacerbate distributive inequality.
Leaves distributive problems to the legislature.
Parameterizing the Law
Textualism vs. Purposivism
Example: "No Vehicles in the Park”
Idea: When we are writing a law or trying to interpret a law, should we focus on the meanings of the words or should we instead focus on the purpose behind them?
Rules vs. Standards
Rules are textualist-like; standards are purposivist-like.
Rules: are specifications, clear, straightforward.
Standards: akin to "drive at a reasonable/safe speed"
Much more subjective and much harder to figure out beforehand what it actually means.
Under vs. Over-Inclusiveness
Under-inclusiveness: failing to capture some problematic conduct
Over-inclusiveness: prohibiting some conduct that we would be okay with allowing.
Generally, we accept that there is some level of under or over-inclusiveness in any law, but consider the “net” benefit overall.
Ex-ante vs. Ex-post
Ex-ante: trying to design a rule to get the incentives right so that more often than not, we are going to get the results that are good for society
Ex-post: backwards-looking; looking at the facts of the case, who the parties of the case were, what actually happened
Private vs. Social Costs and Benefits
Almost every law is designed with either maximizing some social concern or minimizing some social harm, or it is concerned with private rights or harms.
Trade-offs:
Trying to benefit individuals → harming the social value of the institution
Trying to maximize the social value of the institution → harming or posing costs on individuals who could have previously enjoyed that resource
Types of Law
Statutory vs. Common Law
Statutory Law:
These are the statutes (laws) that Congress writes and the President signs
What most sources of law in the U.S. is
Common Law (judge-made law):
When a judge hears a case, interprets a law, and makes a decision
More limited than what Congress can do
Judges generally try to apply the statutory law and “fill in the gaps”
Regulatory Law
Most laws in the U.S. are actually regulatory law.
What is regulatory law?
They are rules made by regulatory agencies (i.e., Department of Transportation, Environmental Protection Agency, Federal Communications Commission, Federal Trade Commission).
Congress creates these agencies by statute, allowing them to develop and enforce their own rules.
Constitutional Law
“Big-Picture” → Can be viewed as the “operating system” of the state/government
Tends to focus on the structure and rules of government
Article I → Congress
Article II → President
Article III → Courts
The Constitution also specifies how the Constitution itself can be amended.
The Constitution also specifies the rights of citizens (between the citizens and the state/government)
Customary Law
Most relevant to international law.
Customary law is the law that exists when there is no one to enforce it.
Example: treaties
“Turtles all the way down” (infinite regress)
There is no one other than international peers who also agreed to the same treaties to enforce it
Generally binding only, but also importantly because countries recognize that it is in their best interests to work together
Key Questions and Takeaways
How can technology change what the law should be?
Under what circumstances should the law be changed by changing technology?
Examples to Consider:
Autonomous Vehicles: How should liability be assigned in the event of an accident involving a self-driving car? Should it be the manufacturer, the owner, or the AI system itself?
Artificial Intelligence in Healthcare: What legal standards should govern the use of AI in medical diagnosis and treatment? How do we ensure patient privacy and data security?
Social Media Regulation: How should laws address issues like misinformation, hate speech, and online harassment on social media platforms?
Natural Law vs. Realism
Natural Law:
There is some objectively correct/best/true understanding of what legal rules should be. Natural law posits that legal rules are derived from inherent moral or rational principles.
Over time, the law is improving itself towards the goal of perfecting what the law is (achieving the state of perfected natural law). It suggests a progressive evolution towards an ideal legal state.
Often carries tones of morality or even religious values. Natural law is frequently intertwined with ethical considerations and deeply held beliefs.
Law should be reasonable or logically consistent. Consistency and rationality are key components of natural law.
In the 1800-1900s, the defining theory was that law was thought to be a natural science. This era saw attempts to apply scientific methods to legal theory.
Oliver Wendell Holmes:
"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."
Holmes emphasized that law is shaped more by practical experience and societal needs than by pure logic.
Comparison of Legal Philosophers
Holmes: The purpose of law is to reflect some social purposes or values, especially the values of certain communities (i.e., rural vs. urban, rich vs. poor).
Holmes believed law should mirror the values and priorities of the communities it governs, acknowledging the diversity of societal values.
Pound: Sociological Jurisprudence.
What does science tell us the law should be?
What does sociology in particular tell us what the law should be?
There are objective realities that restrain what the law CAN be, but they don't necessarily tell us what the law SHOULD be. Pound sought to integrate scientific and sociological insights into legal theory, recognizing both the possibilities and limitations of such an approach.
Fuller: Law has an internal morality that limits what it can be and is procedurally focused. Law must follow good processes.
Fuller focused on the procedural aspects of law, arguing that law must adhere to certain internal moral principles to be legitimate and effective.
Legal Positivism
Refers to positing or putting forth an idea.
Law is a human creation and is not based on or constrained by some objective fact or external morality. Rather, it is defined by people for human needs. Legal positivism asserts that law is created by human beings and is not inherently linked to any external moral code.
Oliver Wendell Holmes, an early legal realist, was a legal positivist. Most legal realists are legal positivists.
Problems with Legal Positivism
Does that law need to apply to the sovereign (i.e., the King, the legislature, whoever is creating the law)?
Much of what we think of as the law reflects norms (act reasonably). If the theory of law is that they are commands made by a sovereign, that doesn't apply to a vast swath of what we think of as law.
Not all laws create obligations or impose sanctions. Legal positivism struggles to explain laws that do not impose sanctions or create obligations.
Why Legal Positivism is Useful
This pushes us away from the idea that law is limited to rules that are generated from the government.
This pushes us away from the idea that law is necessarily about logic or morality alone. It broadens the scope to include various sources and considerations.
Technology can create or change the rules that govern society. Technology's influence on shaping and reshaping legal rules is a critical aspect of modern legal theory.
Law and "Law"
Lessig's Four Forces:
Law
"If you litter in the park, you get fined "
Norms
As a society, we can establish norms shaming those who litter or praising those who clean up litter.
Market
cent/bottle refund for returning recyclable bottles
Incentives for people to collect garbage, or hire someone to clean up the garbage
Architecture
Put garbage cans in convenient places.
Design the park in order to make it easy not to litter or reduce the amount of littering that happens.
Don't allow people to carry bags in the park (through architecture, law, or norms)
Lessig's framework highlights the interplay between law, norms, market forces, and architecture in shaping behavior and social order.
Law and Morality
Lon Fuller:
Inner Morality of the Law:
Putting aside the substance of the law, there are elements of any law or legal process that are necessary in order for a society to accept the law that the society creates.
Laws need to be sufficiently general, publicly promulgated, prospective, minimally clear and intelligible, free from contradictions, possible to obey, etc. Fuller argued that laws must adhere to certain procedural and formal requirements to be considered legitimate.
Society will reject immoral laws even if they satisfy Hart's criteria
A Technological View:
If we were to adopt a rule today that allows the use of a technology, and years from now we realize that the technology that the rule allows is harmful, we are likely to find a way to punish those who developed/used the technology even when it was legal.
Example: Opioid Crisis - Sackler Family
Even though everything they did was generally considered legal at the time, retrospectively, their actions were found to be highly problematic and legally culpable. This example shows how retrospective judgments can impact those who initially operated within legal boundaries.
Recovering Law's Meaning
Legal Process: Two Core Ideas
Institutional Competence:
Which legal or regulatory institution is best positioned to be making certain decisions (e.g., judges vs. legislators vs. regulatory agencies).
Reasoned Elaboration:
We should design processes and rules that require Congress, or agencies, or the President, or courts to go through a structured process of gathering information from interested parties, making decisions based on that information, and explaining how they used that information to the world. The concept emphasizes transparent and well-justified decision-making processes.
Critical Legal Scholars
Concerned with identifying the injustices that we can actually find in the law and forcing us to reconcile the injustices with what the law is.
Themes:
Law is politics and politics is law
Realist and positivist views
Law is never neutral
Overall View:
We improve the law by critically studying it and identifying and advocating for those who are harmed by it. Critical legal scholars advocate for continuous critical examination of the law to address injustices and promote equality.
Critical Legal Scholars: Critiques
Largely, and arguably only critical. It only identifies problems and doesn't necessarily have the tools for or care about providing solutions.
Tends to be very value based and overtly rejects the need to reconcile tradeoffs (i.e., Trolley Problem). This perspective often prioritizes values and justice over pragmatic considerations and tradeoffs.
Law and Economics
People respond to incentives and we can use the law to create incentives for people to act in ways that are good for society or to not act in ways that are bad for society. Law and economics leverages incentives to guide behavior and promote socially beneficial outcomes.
Tends to not focus on fault (who caused it, who is to blame), but rather what could have been done to avoid it. It focuses on prevention and mitigation rather than assigning blame.
Core Critiques of Law and Economics
Law and economics tends to maximize efficiency and the overall wealth of society and therefore does not focus or care about distributive concerns.
Tends to maximize wealth over time, which is going to increase and exacerbate distributive inequality. Critics argue that it exacerbates inequalities by prioritizing wealth maximization.
Leaves distributive problems to the legislature. Distributional concerns are often left to legislative bodies.
Parameterizing the Law
Textualism vs. Purposivism
Example: "No Vehicles in the Park”
Idea: When we are writing a law or trying to interpret a law, should we focus on the meanings of the words or should we instead focus on the purpose behind them? These approaches represent different philosophies in legal interpretation.
Rules vs. Standards
Rules are textualist-like; standards are purposivist-like.
Rules: are specifications, clear, straightforward.
Standards: akin to "drive at a reasonable/safe speed"- Much more subjective and much harder to figure out beforehand what it actually means.
Under vs. Over-Inclusiveness
Under-inclusiveness: failing to capture some problematic conduct
Over-inclusiveness: prohibiting some conduct that we would be okay with allowing.
Generally, we accept that there is some level of under or over-inclusiveness in any law, but consider the “net” benefit overall. Striking a balance is often necessary to maximize overall benefit.
Ex-ante vs. Ex-post
Ex-ante: trying to design a rule to get the incentives right so that more often than not, we are going to get the results that are good for society
Ex-post: backwards-looking; looking at the facts of the case, who the parties of the case were, what actually happened
Private vs. Social Costs and Benefits
Almost every law is designed with either maximizing some social concern or minimizing some social harm, or it is concerned with private rights or harms.
Trade-offs:
Trying to benefit individuals → harming the social value of the institution
Trying to maximize the social value of the institution → harming or posing costs on individuals who could have previously enjoyed that resource Balancing individual and social interests is a common challenge in law.
Types of Law
Statutory vs. Common Law
Statutory Law:
These are the statutes (laws) that Congress writes and the President signs
What most sources of law in the U.S. is
Common Law (judge-made law):
When a judge hears a case, interprets a law, and makes a decision
More limited than what Congress can do
Judges generally try to apply the statutory law and “fill in the gaps”
Regulatory Law
Most laws in the U.S. are actually regulatory law.
What is regulatory law?
They are rules made by regulatory agencies (i.e., Department of Transportation, Environmental Protection Agency, Federal Communications Commission, Federal Trade Commission).
Congress creates these agencies by statute, allowing them to develop and enforce their own rules.
Constitutional Law
“Big-Picture” → Can be viewed as the “operating system” of the state/government
Tends to focus on the structure and rules of government
Article I → Congress
Article II → President
Article III → Courts
The Constitution also specifies how the Constitution itself can be amended.
The Constitution also specifies the rights of citizens (between the citizens and the state/government)
Customary Law
Most relevant to international law.
Customary law is the law that exists when there is no one to enforce it.
Example: treaties
“Turtles all the way down” (infinite regress)
There is no one other than international peers who also agreed to the same treaties to enforce it
Generally binding only, but also importantly because countries recognize that it is in their best interests to work together