The Volokh Conspiracy

The George Washington University Law Review has now published "Major Technological Questions," a contribution by John Duffy and myself to a symposium on Legally Disruptive Emerging Technologies. (You can find all of the symposium contributions here.) In this post, John and I will provide a brief overview of our argument. We'll elaborate more in several subsequent posts.

Our core argument is that courts and agencies should hesitate to interpret ambiguous pre-existing legal authority as resolving legal questions newly raised by major technological developments. As the title suggests, we draw an analogy to the "major questions doctrine." That doctrine can be understood as holding that an administrative agency seeking to resolve major questions of vast or political significance must have a fairly explicit authorization in pre-existing statutes that supports the agency's power to address such "major questions." If such an explicit authorization is absent, the pre-existing statutes are interpreted so that the "major questions" are viewed as outside the ambit of the agency's statutory authorization.

Our approach to major technological questions is analogous but not identical. We argue that, when significant new technologies and with them major new legal questions arise, all legal actors (both agencies and courts) should typically view those questions as falling outside the ambit of pre-existing legal materials, including not only statutes but also judicially created common-law doctrines. The consequences of such a view varies. For agencies, the consequence is likely a lack of statutory authorization and thus less power (just as with the major questions doctrine). For courts, the consequence of viewing pre-existing precedents as not addressing new technological issues may well be to give the courts more power because the courts would then not be constrained by precedent.

We'll give some examples of past and current controversies in later posts, but the idea can be seen clearly in a hypothetical. Imagine that in the future, a technological development (maybe even the invention of Mr. Fusion Home Energy Reactors) makes it possible for individual households to generate substantial amounts of power and sell that power directly to their neighbors. The question might then arise whether each individual household is a "public utility" under the relevant statute governing administrative action or is sufficiently "public" under judicial precedents governing the reach of traditional regulatory powers. Those questions, it should be noted, may not fall within the "major questions doctrine" because, at least at first, only a few early adopters may be buying the home fusion devices.

The lawyerly instinct would be to look, say, to the pre-existing administrative statutes and judicial precedents to answer those questions. We think, however, that the pre-existing definition of "public utility" under statutory law or the pre-existing concept of a "public" business under judicial cases simple may not shed light on the fundamental policy questions in this radically different world. Given that pre-existing lawmakers probably did not consider whether individual households should have to meet, say, paperwork and procedural requirements imposed on large electric utilities, the pre-existing legal sources might reasonably be interpreted as simply being inapplicable. That doesn't mean that we necessarily favor that such home electric sales should ultimately be unregulated, but the relevant lawmaking body (the Congress for federal statute law and the courts for judge-made law) may very well have to act to address the relevant new legal questions posed by the advent of the technology.

We do not claim major technological questions as a subcategory of the major questions doctrine. As noted with the fusion hypothetical, many major technological questions may be presented at the first dawn of a new technology when the social or economic stakes hardly seem "major." Rather, our approach to major technological questions follows a fundamental insight of the major questions doctrine: sometimes lawyers and judges are looking for answers in texts that simply cannot provide them.

Ultimately, our argument is a prudential one, and we do not claim to prove wrong someone who has more faith in the power of legal actors to extract from old, ambiguous sources clear meaning relevant to entirely new problems.  We also recognize that our approach may have more purchase in some contexts than others. Reasonable people may disagree about whether a technological development and the legal questions surrounding it are sufficiently "major" to justify our approach. Nevertheless, our approach is, we believe, especially justified in three circumstances: first, when a contrary approach would give decisional power concerning the new technology to an agency or other regulatory body that lacks the expertise necessary to make the relevant policy decisions;  second, when the principal costs and benefits of the new technology are not closely related to those that animated the lawmaking entity that created the pre-existing legal authority; and third, when a contrary approach would greatly limit the emergence of, and experimentation with, the new technology.

A potential critique of our approach is that it often favors a deregulatory default. While that may be true, the fundamental goal of our approach is to make sure that the relevant lawmaking bodies have grappled with the relevant policy issues and come to some considered resolution. Where the relevant lawmaking body is a legislature as opposed to a common-law court, our approach can be viewed as favoring democratic action. To the extent that our approach still has a deregulatory tilt, that tilt is a positive. In common lawmaking, courts can legitimately consider all sorts of policy considerations, including the strong historical support in our legal culture to innovation and progress as exemplified by our constitutionally authorized patent system. In statutory law, our approach is no less appropriate than the major questions doctrine, at least where there is ambiguity. Of course, sometimes the law will discourage innovation with antiquated justifications but yet be sufficiently clear. An example may be the Federal Aviation Administration's nearly complete ban on supersonic aircraft. Where the law is genuinely ambiguous, however, our approach would help to make sure that regulatory decisions are made with full consideration of the relevant policy grounds (by the legislature or by the courts) and are not developed merely by having lawyers and judges squinting to find answers in dusty legal materials that don't offer them.

In the next blog posts, we'll apply our approach first to some old technologies (the inventions of photography and airplanes) and then to some new ones (cryptocurrencies and artificial intelligence).