The George Washington College Regulation Evaluate has now printed “Main Technological Questions,” a contribution by John Duffy and myself to a symposium on Legally Disruptive Rising Applied sciences. (Yow will discover all the symposium contributions right here.) On this publish, John and I’ll present a short overview of our argument. We’ll elaborate extra in a number of subsequent posts.
Our core argument is that courts and companies ought to hesitate to interpret ambiguous pre-existing authorized authority as resolving authorized questions newly raised by main technological developments. Because the title suggests, we draw an analogy to the “main questions doctrine.” That doctrine may be understood as holding that an administrative company searching for to resolve main questions of huge or political significance will need to have a reasonably express authorization in pre-existing statutes that helps the company’s energy to handle such “main questions.” If such an express authorization is absent, the pre-existing statutes are interpreted in order that the “main questions” are seen as exterior the ambit of the company’s statutory authorization.
Our method to main technological questions is analogous however not similar. We argue that, when important new applied sciences and with them main new authorized questions come up, all authorized actors (each companies and courts) ought to usually view these questions as falling exterior the ambit of pre-existing authorized supplies, together with not solely statutes but additionally judicially created common-law doctrines. The results of such a view varies. For companies, the consequence is probably going a scarcity of statutory authorization and thus much less energy (simply as with the key questions doctrine). For courts, the consequence of viewing pre-existing precedents as not addressing new technological points might be to offer the courts extra energy as a result of the courts would then not be constrained by precedent.
We’ll give some examples of previous and present controversies in later posts, however the concept may be seen clearly in a hypothetical. Think about that sooner or later, a technological growth (perhaps even the invention of Mr. Fusion Dwelling Power Reactors) makes it doable for particular person households to generate substantial quantities of energy and promote that energy on to their neighbors. The query may then come up whether or not every particular person family is a “public utility” underneath the related statute governing administrative motion or is sufficiently “public” underneath judicial precedents governing the attain of conventional regulatory powers. These questions, it ought to be famous, could not fall throughout the “main questions doctrine” as a result of, no less than at first, just a few early adopters could also be shopping for the house fusion units.
The lawyerly intuition could be to look, say, to the pre-existing administrative statutes and judicial precedents to reply these questions. We predict, nevertheless, that the pre-existing definition of “public utility” underneath statutory regulation or the pre-existing idea of a “public” enterprise underneath judicial instances easy could not make clear the basic coverage questions on this radically totally different world. On condition that pre-existing lawmakers in all probability didn’t take into account whether or not particular person households ought to have to satisfy, say, paperwork and procedural necessities imposed on giant electrical utilities, the pre-existing authorized sources may moderately be interpreted as merely being inapplicable. That does not imply that we essentially favor that such dwelling electrical gross sales ought to finally be unregulated, however the related lawmaking physique (the Congress for federal statute regulation and the courts for judge-made regulation) could very properly should act to handle the related new authorized questions posed by the appearance of the know-how.
We don’t declare main technological questions as a subcategory of the key questions doctrine. As famous with the fusion hypothetical, many main technological questions could also be introduced on the first daybreak of a brand new know-how when the social or financial stakes hardly appear “main.” Relatively, our method to main technological questions follows a basic perception of the key questions doctrine: typically legal professionals and judges are in search of solutions in texts that merely can’t present them.
Finally, our argument is a prudential one, and we don’t declare to show unsuitable somebody who has extra religion within the energy of authorized actors to extract from outdated, ambiguous sources clear that means related to completely new issues. We additionally acknowledge that our method could have extra buy in some contexts than others. Affordable folks could disagree about whether or not a technological growth and the authorized questions surrounding it are sufficiently “main” to justify our method. However, our method is, we consider, particularly justified in three circumstances: first, when a opposite method would give decisional energy in regards to the new know-how to an company or different regulatory physique that lacks the experience essential to make the related coverage choices; second, when the principal prices and advantages of the brand new know-how will not be intently associated to those who animated the lawmaking entity that created the pre-existing authorized authority; and third, when a opposite method would vastly restrict the emergence of, and experimentation with, the brand new know-how.
A possible critique of our method is that it typically favors a deregulatory default. Whereas which may be true, the basic aim of our method is to guarantee that the related lawmaking our bodies have grappled with the related coverage points and are available to some thought of decision. The place the related lawmaking physique is a legislature versus a common-law court docket, our method may be seen as favoring democratic motion. To the extent that our method nonetheless has a deregulatory tilt, that tilt is a optimistic. In frequent lawmaking, courts can legitimately take into account all types of coverage issues, together with the robust historic help in our authorized tradition to innovation and progress as exemplified by our constitutionally approved patent system. In statutory regulation, our method is not any much less acceptable than the key questions doctrine, no less than the place there may be ambiguity. After all, typically the regulation will discourage innovation with antiquated justifications however but be sufficiently clear. An instance stands out as the Federal Aviation Administration’s practically full ban on supersonic plane. The place the regulation is genuinely ambiguous, nevertheless, our method would assist to guarantee that regulatory choices are made with full consideration of the related coverage grounds (by the legislature or by the courts) and will not be developed merely by having legal professionals and judges squinting to seek out solutions in dusty authorized supplies that do not supply them.
Within the subsequent weblog posts, we’ll apply our method first to some outdated applied sciences (the innovations of images and airplanes) after which to some new ones (cryptocurrencies and synthetic intelligence).
