The field of law and technology has come a long way since we last heard the unmistakable squeal of a modem connecting to cyberspace. Most of us that remember that sound now probably have more grey hair than we used to. We’ve covered a lot of ground since “Lex Informatica” and “Code is Law,” so you’d think our field would have a deeply sophisticated method for understanding the relationship between law, society, and technology, right?
Professor Ryan Calo thinks the field can do better. In this concise and accessible unpublished article that is part of a new book project, Calo highlights how Science and Technology Studies, or STS, has been overlooked and could contribute to the field of law and technology. To Calo, law and tech took decades to wind up where STS would have started. It’s not that law and tech is redundant of STS, rather, the problem is that “law and technology has been sounding similar notes to STS for years without listening to its music.” As a result, our field “does not benefit from the wisdom of scholars who have covered roughly the same ground.” Calo looks to showcase critical STS ideas and debates “for the unfamiliar law and technology reader,” so that we no longer have an excuse to claim ignorance of the field. He accomplishes this in spades with a clear and deeply informed article that is a must read for anyone writing in the field of law and technology.
Calo wrote this article because he believes that “a working knowledge of STS is critical to law and technology scholarship.” He argues that the core insights of STS will help scholars avoid “the pitfalls and errors that attend technology as social fact.” Calo’s contribution has three parts. The first is a brief STS crash course for the uninitiated. If you are unfamiliar with STS and regularly read this journal, stop reading this and check out Calo’s highly efficient summary of STS in Part One (it’s only seven pages!). I imagine the work of Langdon Winner, Bruno Latour, Sheila Jasanoff, and many other STS scholars will resonate with you as it did for me when I first encountered them. This introduction to the field is both informative and enjoyable because of Calo’s palpable enthusiasm for STS. (As I wrote this, I laughed at how I’m writing a review about how much I like Calo’s article, which is about how much he likes STS. It’s like I’m writing a Jot about a Jot. A meta-Jot.)
The second part of this article is an exploration of STS insights that make up the “road not taken by law and technology.” Calo highlights what could have been gained if legal scholars had more explicitly embraced STS earlier, including more nuanced metaphors, more case studies, and fewer redundancies. Calo cites two downsides that arise from law and technology overlooking STS. First, failing to deeply engage with STS denies the field of law and tech wisdom and nuance. Additionally, law and tech scholarship often falls into some of the very traps STS grew up to avoid, such as a strong sense of technological determinism and the idea that technology will shape behavior in one single way and no other.
In the article’s third part, Calo highlights the limitations of STS scholarship for law and technology scholars. First, STS is relatively uncomfortable with normativity, compared with the law’s embrace of it. Additionally, STS sometimes struggles to translate concepts and observations in ways that can influence levers of power. Calo notes that STS scholarship sometimes gets lost in its own complexity, a critique levied by some STS scholars themselves. But as Julie Cohen has noted, law is relentlessly pragmatic in its identification and attempt to solve real world problems. While other disciplines might hesitate to offer up messy and even internally conflicting prescriptions, legal scholars do it for a living when inaction means injustice. Calo highlights the dangers of law and tech avoiding normativity and pragmatism, including getting stuck in a “constant state of watchful paralysis.” This happens when legal actors wait so long to fully understand the social impacts of technologies that when clarity finally arrives these tools and systems are too entrenched to resist. In STS scholarship this is referred to as the “Collinridge dilemma,” and it gives more nuance to what I’ve heard some law and tech scholars describe as the “avocado ripeness” problem. (Not yet…not yet…not yet……..too late.)
Thus, Calo’s article ends up being part STS-primer and part STS-implementation guide for law and technology scholars. According to Calo, you shouldn’t simply chuck a bunch of STS into every corner of cyberlaw, because “importing STS wholesale…has the potential to undermine what is unique about the [law and technology] field.” In the final part, Calo recommends that legal scholars should be mindful of how technologies have value-laden affordances and social forces behind them while holding firm to legal scholarship’s normativity and pragmatism. I appreciated Calo’s suggestion that one major strength of law and technology scholarship is making ideas and concepts concrete enough for people to act on.
I like this article because it is clear, concise, and even witty. (It wouldn’t be a Calo article without puns and he even managed to work one into the title). And I like this article lots because of its meditation on the virtues, vices, and proper role of “law and technology” as a field of scholarship. This is one of the main aspects of Calo’s forthcoming book. My only complaint in this review is I wish the article had previewed his larger project on law and technology more.
If we are going to take a serious look as the relationship between rules and artifacts, we must have a good sense of both. This article uses STS to show where the field of law and technology can improve, and what it does best.
