Abstract
A classic dichotomy at the heart of technology policy—precaution versus permission—oversimplifies the role of government. The evidence is thin that precaution causes discernible harm, and attacks on the precautionary principle are ironic for their failure to countenance regulatory innovation. Law is not and shouldn’t be entirely precautionary with respect to emerging technology, any more than entirely permissive. The unenviable role of government is to channel technology in the public interest through a disparate and evolving set of governance mechanism that vary with norms and context.
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Notes
- 1.
15 U.S.C. § 45(a)(1).
- 2.
E.g., AMG Cap. Mgmt. v. Fed. Trade Comm’n, 141 S. Ct. 1341 (2021) (limiting the Commission’s power to seek disgorgement, restitution, or other equitable monetary relief).
- 3.
15 U.S.C. § 45(n).
- 4.
“China’s one-child policy will be remembered as one of the costliest lessons of misguided public policymaking” Feng et al. (2016: p. 84).
- 5.
Due to Clinton-era welfare reform, “[p]eople receiving federal welfare payments fell by half in four years,” and “[d]eep poverty increased among families and unemployed adults” (Ehrenfreund 2016).
- 6.
Priest (2012) argues that “Eisenhower’s 1959 imposition of mandatory import quotas on oil” sped depletion at home.
- 7.
Mihm (2017) explains that the Wage Stabilization Act of 1942 led to employers offering healthcare benefits.
- 8.
Hazlett and Sosa (1997) argue that the fairness doctrine acted as a “tax on controversial speech.”
- 9.
E.g., Thierer (2019) explaining that, in the nuclear context, “the precautionary principle has had significantly negative direct costs in the form of increased electricity costs as well as increasing carbon emissions, due to forced continued reliance on fossil fuels” and that “anti-GMO resistance among environmental activists and regulatory officials held up the diffusion of” golden rice, which solved a deathly nutrient deficiency, for over ten years.
- 10.
Ironically, the internet is today the chief vehicle by which misinformation about nuclear power and GMOs spread. See, e.g., Jiang and Fang (2019: p. 327), who state “On the mechanism of diffusion of rumours on Weibo, we observed that ‘evidence’ that directly or indirectly purported to show that GM soybeans cause cancer was added to the rumours and that the rumours were ‘assimilated’ into people's perception through the stigmatization of GMOs and through conspiracy theories.”
- 11.
Sarah [sic] (2019): “On August 7, 1959, the Explorer 6 satellite launched.... Approximately a week into the mission, it captured and transmitted the first photograph of Earth via satellite while orbiting over Mexico.”
- 12.
E.g., Nev. Rev. Stat. § 482A (2017).
- 13.
For example, in its letter replying to Google about gaps in federal legislation affecting driverless vehicles. Letter from Paul Hemmersbaugh, Chief Counsel, Dep’t Transp., to Chris Urmson, Dir. Self-Driving Car Project, Google (on file with the Nat’l Highway Traffic Safety Administration).
- 14.
Wiener and Rogers (2002: p. 339), for example, note “In particular, economic protectionism may explain some of the complex pattern of relative precaution.”
- 15.
Soesastro (2011: p. 35) argues that global trade “could become a fundamental part of the solution to the global economic crisis” because “it could help reverse the growing economic nationalism that is manifested in various forms of trade and financial protectionism.” Baldwin and Evenett 2011: pp. 1, 5) argue that “protectionism in government procurement is an old problem” and that “[p]rotectionism is creeping into national policies and trade volumes are collapsing.”
- 16.
United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (“[T]he owner’s duty... to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions.”).
- 17.
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory.”).
- 18.
Margot E. Kaminski, Drone Federalism: Civilian Drones and the Things They Carry, 4 Calif. L. Rev. Cir. 57 (May 2013).
- 19.
Pagallo et al. (2019) argue that “[T]hese forms of legal experimentation go hand-in-hand with the creation of lawfully de-regulated special zones, that is, a sort of living lab for the empirical testing and development of AI and robotics.”
- 20.
- 21.
For a discussion of affordances and how they relate to law, see Calo (2017).
- 22.
Brady v. Maryland, 373 U.S. 83 (1963).
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Calo, R. (2023). Law Controlling Technology. In: Kassens, A.L., Hall, J.C. (eds) Challenges in Classical Liberalism. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-32890-9_13
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