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August 27 Tuesday

Can Law Keep Up?, Joshua Fairfield, Professor, Washington and Lee School of Law

  • Tuesday, August 27, 2019 at 12:05PM - 1:30PM
  • SLB Room 122
  • Open To The Yale Community
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The future is coming fast, and we need to work together to decide how to meet the challenges of rampant technological progress. Dragnet surveillance, artificial intelligence, autonomous vehicles, biohacking, and 3D printing. Can law keep up? If law becomes obsolete, lagging behind the ever-increasing rate of technological advances, what happens to the state? Or, if law evolves to grant increased flexibility to government, will those broader, more far-reaching powers upset the balance between citizen and sovereign? Is there a way that law can keep pace with innovation, while protecting and preserving the freedoms that create an atmosphere of innovation? If law is to do this, it must not only change, but embrace the concept of ongoing change, interweaving flexibility and resilience with the more established concepts of order upon which society is built. This book argues that law is an adaptive social technology, that helps us cooperate through language—symbol, narrative, and fiction. Our goal in developing these cooperative fictions must be to coordinate our efforts to survive and thrive in the face of rampant technological change.

Language is how humans cooperate. Humans are eusocial. We, like ants and bees, are super-cooperators. Our competitive advantage is that we can upgrade our cooperative ability through language. As Yuval Harari notes, bees cannot guillotine the Queen and declare a republic. Our ability to cooperate depends on our ability to create and believe in collective fictions, like money, capitalism, human rights, and the State of California. And the most evolved form of language we use to coordinate leaves behind the language of gods and kings, and has stood for something else entirely: the Rule of Law. Law is a refined version of human language eusociality. It is the language about language, the rules about rules. It is that system that is under assault—no wonder that right now we are scurrying around like someone just kicked the ant-hill. We don’t yet have the kind of language we need to talk about the problems of the future. Law is a kind of social technology, and can be developed just like any other kind of technology. Instead of why we can’t develop law that keeps up, the question becomes why we don’t.

There is a pretty simple explanation, also grounded in the power of language and narrative. Law appears to lag technology across the globe because the world’s most technologically advanced nation has refused even the most responsible regulation. Doing nothing is often the best idea when a technology is first developed, until we see what the benefits and harms are. But somewhere along the way, this ossified into the idea that oversight of tech companies is counterproductive. Or, in the words of Ned Flanders’ beatnik parents, who refuse to discipline their son in any way, “We’ve tried nothing, and we’re all out of ideas.”

We can and must develop language that will meet the demands of the future. Stansilaw Lem wrote: “Technology is the domain of problems proposed and the methods of solving them.” Law is a language technology. It is a means of solving the problem: “How can we cooperate fruitfully? How should we live together?” Language is the raw stuff of law, and emerges within groups of humans as they negotiate meaning within the context and task of life together. And here is the seed of the answer to our question of “Can Law Keep Up?” Unlike genetic evolution, language allows us to upgrade our cultural software at terrific speed, without having to wait for our genetic hardware to upgrade. Evolving language is how humans have always managed technological change, and it is our only hope now.

Joshua Fairfield is an internationally recognized law and technology scholar, specializing in digital property, electronic contract, big data privacy, and virtual communities. He has written on the law and regulation of e-commerce and online contracts and on the application of standard economic models to virtual environments. Professor Fairfield's current research focuses on big data privacy models and the next generation of legal applications for cryptocurrencies. His articles on protecting consumer interests in an age of mass-market consumer contracting regularly appear in top law and law-and-technology journals, and policy pieces on consumer protection and technology have appeared in the New York Times, Forbes, and the Financial Times, among other outlets. Before entering the law, Professor Fairfield was a technology entrepreneur, serving as the director of research and development for language-learning software company Rosetta Stone.

Professor Fairfield consults with U.S. government agencies, including the White House Office of Technology and the Homeland Security Privacy Office, on national security, privacy, and law enforcement within online communities and as well as on strategies for protecting children online. From 2009 to 2012, he provided privacy and civil liberties oversight for Intelligence Advance Research Project Activity (IARPA) research programs in virtual worlds. In 2012-13 he was awarded a Fulbright Grant to study trans-Atlantic privacy law at the Max Planck Institute for Research on Collective Goods in Bonn, Germany. He was elected a member of the American Law Institute in 2013.

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