Przemysław Pałka (Jagiellonian University in Krakow – Faculty of Law and Administration; Information Society Project at Yale) has posted Some Light Remarks on Methodology of Law and Technology (“A Contract Law for the Age of Digital Platforms?” Elena Bargelli & Valentina Calderai (Eds.), Pacini Giuridica, 2021) on SSRN. Here is the abstract:
Legal scholarship has a (partly deserved) reputation for being boring. Legal articles and treatises, especially in long-established fields like contract, admin, or tax, seldom spark interest outside the narrow circles of experts. As we’re among ourselves, lawyers, let’s admit it: when we write, in our Twitter or LinkedIn bios, that we’re “passionate” about the regulation of certain specific markets, we don’t really mean it. We just signal that we’re experts and not (yet) burned out. And if you ever went on a Tinder date and opened with “for work I read and write about the role of formal mistakes in contract formation,” chances are high that you never had a chance to get into the details on the second date.
Now, law & technology is different. Who isn’t excited or concerned about the platforms? Facebook & Google spy on us, influence our preferences through targeted ads, and possibly play a part in ruining the democracy. And “privacy!” Whether the amount of data stored about you by the platforms scares you or not, few people find the subject uninteresting. So, if you open by “you know how we met on Tinder? They have data about all your swipes, know your preferences, use it to show you ads and maybe even sell it to some shady companies; I study the law that makes it happen and the ways to render it less creepy,” you’ve got your date’s attention. Personally, I still usually ruin in (being a nerd after all – come on, we’re among ourselves, scholars) but you get my point.
More seriously, though – law & technology is exciting not only subject-wise but also methodology- and theory-wise. It’s a largely uncharted territory not only because the rules are new or non-existent, not only because few people have written about these topics, but also because we don’t really know how exactly to write about it. We’re learning law & technology by doing it. This circumstance makes the field thrilling, innovative & potent; but it also makes it much harder to navigate. Traditionally, legal scholars have not been thinking along the lines we currently do – we lack libraries filled with classic tomes of exemplary work to learn from.
This short essay contains some preliminary reflections on methodology in the field of law & technology. First, I discuss what I believe law & tech scholars should not be doing, for legitimacy reasons – namely to present the regulatory goals, in nature political, as necessary consequences of what the legal system is now. Second, I survey the various functions that, I believe, law & tech scholars, are well suited to fulfill. Two caveats: first, these are very preliminary thoughts – it’s more an expression of my intuitions rather than a systematic account of a long-lasting research project. For this reason, I’d ask the Reader to be critical – I might not be right; I highlight the areas I believe are important. Second, I have deliberately written this in a provocative style. My purpose is spark thinking and pushback – both to advance my own arguments, and to contribute to the overall reflection.