We live in a moment when technology is changing in a way which is fundamentally new. During the industrial revolution, machines displaced and replaced human labor. Printing ceased to be an artisanal trade and became the work of mechanized presses. The invention of the cotton gin increased agricultural productivity by leaps and bounds; the invention of the power loom made it possible to turn raw cotton into finished product more quickly. The labor power at the disposal of human beings increased immensely, a fact reflected in our now nearly meaningless practice of measuring the power of cars in terms of “horsepower”. Having the power of hundreds of horses at your disposal was a fantasy not so very long ago. Even in the years following World War Two, the introduction of new consumer technology (dishwashers, washing machines) marched under the banner of “labor-saving devices.” Labor-saving technology was both profoundly disruptive of human life and enabling of astonishing new possibilities. It reshaped firms, governments, laws and society. But it did not really challenge the sovereignty of the human mind. Mostly, it increased the mind’s power to work its will in the world.
Now, emerging technologies are displacing human intelligence more than they are displacing human labor. Artificial intelligence is one case in point; autonomous vehicles are another. These technologies are challenging the sovereignty and supremacy of the human mind. We think of machines as objects—and they are—but these new technologies appear to be giving machines some of the attributes of subjects. Artificial intelligence, for instance, is enabling agents other than human beings to issue administrative decisions, to draft contracts, to do legal research, and to tailor standard-form contracts to the particularities of individualized users. Self-driving cars promise to make human drivers obsolete. The human beings who occupy these cars will no more govern their maneuvers than passengers in airplanes govern the plane’s maneuvers. Other technologies are increasing people’s powers of surveillance and control over others, both within the workplace and in daily life. In an important way, these technologies are monitoring people’s minds—what it is that people are directing their attention toward and why they are doing so—not just their actions. Web-based networks have such powers of observation. and these powers are now being exploited both by employers and consumer products and services. Sometimes, emerging technologies promise to thwart the dangerous tendencies of other emerging technologies, as blockchain might sometimes thwart nascent threats to privacy.
These developments raise all kinds of legal puzzles, but three are especially prominent. One is how to wedge new phenomena into old frameworks. Wedging new developments into preexisting legal cubbyholes, categories, and regimes is what lawyers do. Often, this feels strained and troubling even when the effects of or more ordinary human ingenuity are in question. We try to fit new financial instruments into existing legal boxes, for example, and they do not always fit smoothly. Wedging new phenomena into preexisting legal frameworks is often much harder when technological change creates new possibilities. For example, the virtual world itself presents problems for bodies of law designed with the physical world in mind. How can we adjust our understanding of antitrust law to cope with markets which exist not in physical space but online? How can we adjust our existing privacy protections to cope with technological tracking and monitoring enabled by willingly hooking ourselves up to social networks? It is one thing to shield people from unwelcome observation by other people; it is quite a different challenge to shield them from observation by technologies they are deploying in pursuit of their own ends and in order to interact with others.
The impulse to wedge new phenomena into preexisting legal constructs seems even more troubling when machines step into the shoes of human agents. This is a second pressing problem: can we and should we delegate responsibilities to technologies? Some of the tasks which appear to be in the process of being taken away from human beings and taken over by artificial agents—issuing administrative decisions, doing legal research, or drafting contracts—are tasks through which law is understood and constituted. This is a revolutionary development, not just a latter-day twist on replacing human scriveners with typewriters and photocopy machines. If administrative decisions are made by algorithms implemented by programs, the question of who is responsible for the decision, and what authority they can claim when they make it, looms large. At least since Rousseau, we have been inclined, reflexively, to understand law as something we give to ourselves. Is it possible and acceptable for machines to give law to us? Can machines really take responsibility for legal decisions and the creation of legal instruments? Offhand, machines seem capable of making decisions only when there is nothing to take responsibility for, when the algorithm leaves no room for the exercise of judgement. What process justification can a contract claim when the process is manipulated by one party in possession of powerful new technology to take advantage of the other party’s weaknesses? These are difficult theoretical questions, but they are no longer just theoretical questions. They are pressing practical problems, coming at us every more quickly.
A third conundrum—which crops up in the possibility of personalizing contracts but in other places as well—is how to cope with newly created powers of manipulation. Technological power is this emerging brave new world is not symmetrically distributed. Mostly, it is in the hands of those with the capital to create it. And it can be used to exert new powers of control over others. Information gathered from newfound powers of observation raise this possibility. That information may, for example, be used to tweak contract terms in highly individualized ways. The power to individualize contract terms might further autonomy or undermine it. Contracts can be tailored to the informed, rational, preferences of the parties, or they can be tailored by the party with control over the technology to take advantage of the irrationalities, ignorance, and vulnerabilities of the other parry. How should we reconfigure contract law? What kind of interpretative rules should govern such contracts? Our inherited regime of consumer contract interpretation was devised with standardized contracts in mind. Can that regime be reworked to meet the challenges of the new world of “personalized” contracts?
The papers collected in this volume address these and other emerging issues in fresh and thoughtful ways. They lay the foundation for taming the brave new world that technological progress is now thrusting upon us.