Tech Law Prof as Prognosticator
posted by Frank Pasquale
My appearance on David Levine’s Hearsay Culture show recently showed up on iTunes–somewhat ironically given my repeated criticisms of the great and terrible Jobs. As I listened to part of the show, I was struck by how much the legal analysis of search regulation was dependent on future business and technology developments. If Google’s dominance in the market continues to grow, then one range of regulatory regimes seems necessary. But if there are diverse successful search engines, a wholly different approach is plausible.
The whole exercise reminded me of Warren Wagar’s fascinating book, A Short History of the Future, which tries to envision the next 200 years of world history. Projecting tech trends that far out must in part be in an exercise in fantasy–but on the other hand, the very process of doing so is a humbling reminder of how much events depend on utterly contingent developments that came before.
For that reason, perhaps, the old “long-form” scholarship of the big law-review article may be becoming increasingly ill-suited for rapidly changing areas of technology. Perhaps that’s why the recent Wu-Yoo debate on net neutrality, or Wu’s even more recent take on the future of indie movie gatekeeping, is so refreshing. It makes little sense to develop a vast architectonic theory for a mandala of protean corporate players.
On the other hand, we can’t let the mere mutability of the tech landscape cow us into passivity. There is no neutral baseline in these fields–they are already so saturated with government intervention in the form of IP rights, regulation, etc., that it makes no sense to characterize any given “noninterventionist” move as promoting the unalloyed efflorescence of the market. Whoever wins any given battle among content providers, intermediaries (like search engines) and network operators (like phone and cable co’s), the result will be due to a lot of prior lobbying and shaping of the law–whatever stance legislators and regulators take heretofore.
Photo Credit: LongView/Flickr, “Pike’s Fortune Teller.”