BJ Ard, Making Sense of Legal Disruption, 2022 Wis. L. Rev. Forward 42 (2022).
Abstract
What does it mean for technology to disrupt law? Several possibilities come to mind. The first is that disruption refers to reshuffling some feature of the prevailing social order, destabilizing the balance of power and rights under prior law. Social impacts like these are instrumental to legal disruption—they often precipitate legal action to reverse or entrench the new status quo—but focusing on social impacts tells us little about the role or response of law itself.
The second possibility is disruption in the sense of challenging and changing substantive legal doctrine. This is perhaps the most popular and intuitive usage, and certainly a core concern for legal scholars. To define disruption this way, however, sweeps in too much. Change is an expected feature of a functional legal system rather than an indicator of anything remarkable. One might try to reserve the disruption label for particularly sudden changes or difficult doctrinal problems, but this solution invites further line-drawing questions. This framing of legal disruption is also incomplete: it begs for an account of why some doctrinal challenges prove more difficult than others.
This essay introduces a third possibility grounded in institutional analysis. By this account, legal disruption arises when technological change presents problems that are difficult to resolve through standard processes of making, enforcing, and updating the law. It arises fundamentally from the mismatch between the questions presented and the capabilities of existing legal institutions along the dimensions of authority, competence, and legitimacy. This account of disruption provides a schema for understanding how the difficulty of resolving techlaw problems extends beyond questions at the level of doctrine.
The legal system can often muddle through difficult questions for a time. The accumulation of intractable problems and unsatisfactory answers may, however, prompt structural changes to the legal system. These changes sometimes lead to disruption in a fourth sense: institutional disruption. Institutional disruption follows when the reconfiguration or replacement of legal institutions raises further systemic problems—for example, where privatization of government functions undermines the system’s legitimacy. These transformations are typically adopted in the guise of addressing apparent deficiencies in prior institutional arrangements, but they are also propelled by currents in the wider political economy. I argue that disruption in the third and fourth sense characterizes the problems of greatest concern in technology law and regulation.
legal disruption, institutional disruption, law and disruptive technologies, substantive legal disruption, doctrinal disruption, legal process theory, Fourth Amendment, surveillance technology, copyright, digital file-sharing, technology law, techlaw, law and technology
