Academic journal article Law and Contemporary Problems

How Do You Solve a Problem like Law-Disruptive Technology?

Academic journal article Law and Contemporary Problems

How Do You Solve a Problem like Law-Disruptive Technology?

Article excerpt



Sometimes technology can threaten to upend an entire system of regulation. Autonomous vehicles challenge current driver-based regulations; (1) 3D printing defies patent law; (2) the gig economy intensifies an ongoing fight in employment law. (3) This sort of technology--what this Note terms law-disruptive technology (4)--has three main characteristics. Law-disruptive technology is new or improved technology that brings significant societal or economic impacts and does not fit into existing legal structures. (5) In these cases, the current statutory schemes do not provide answers on how the technology can or should be regulated.

One vivid example of law-disruptive technology is the gig economy worker classification problem. (6) Workers are traditionally defined either as employees or as independent contractors, and courts use a variety of tests to sort workers into one of the two categories. (7) Both classifications pose advantages and disadvantages for employees and employers. Employees are eligible for a variety of benefits and protections unavailable to independent contractors. (8) But it is much more expensive for a company to hire an employee than an independent contractor. (9) Alternatively, independent contractors are, as their name suggests, independent. Independent contractors decide who to work for--customarily more than one employer at a time-and can control their schedules and hours worked. (10) Thus, companies have less control over independent contractors.

While there has long been tension between the classification of employees and independent contractors, (11) the rise of the gig economy brought renewed attention to these categories and led experts to question whether two categories are sufficient. (12) Much has been written, both academically and in popular media, about how to classify workers in the gig economy: (13) as employees, independent contractors, or some third yet-to-be-created category. (14)

So how do we solve a law-disruptive technology problem like gig economy worker classification? We must first determine who should solve the problem. This Note advances the theory that, while courts may be the most obvious forum for resolving this dispute, they will not provide the best solution. An analysis of the comparative institutional competence of the three branches of federal government reveals that the legislative branch and the executive branch, through executive agencies, are better equipped than the judicial branch to address how existing statutes interact with law-disruptive technology. (15) One of the main reasons that legislatures and agencies are better suited to manage law-disruptive technology is that they can find new solutions, while courts must shoehorn law-disruptive technology into existing categories.

Shoehorning is different from analogical reasoning, which courts use every day. (16) Using analogical reasoning, with each new fact pattern a court must determine whether to extend a test--or rule, or elements-to the facts at hand. H.L.A. Hart laid out a classic example of this sort of reasoning when he questioned whether bicycles are allowed in a park where "vehicles" are prohibited. (17)

Shoehorning, in contrast, evokes the more negative implications of analogical reasoning. (18) It conjures the image of being crammed--smashed into a container not appropriately sized. (19) In shoehorning, new problems are forced into existing doctrines where they simply do not fit. Law-disruptive technology, for instance, involves not just new applications of the law, but applications of the law to technology that did not exist at the time the legislation was enacted. (20) In this sort of situation, the shoehorn is the wrong tool. Questions about how to fit law-disruptive technology into the legal framework should be assigned to the political branches, which can change the existing categories or create new ones altogether.

Part II of this Note defines law-disruptive technology and explores three examples: the gig economy worker classifications, 3D printing, and driverless cars. …

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