Technology and the Pace of Change
At Concurring Opinions, Professor James Grimmelmann writes a post called “DRMbarassment for Us Law Professors?“ The title is derived from the specific technology about which he writes in the post, but I want to talk briefly about the larger points he brings up at the end of his post. He writes:
We law professors who regularly opine on high technology are often dangerously blasé about the details of the technology we’re opining on. We get caught up in the minutiae of 1201(a)(1) versus 1201(a)(2) versus 1201(b), and we don’t pay anywhere near as much attention to the surrounding web of other kinds of IP, business arrangements, and especially technical specifications as we ought to. Consider these posts another plea for better interdisciplinarity. Our students are doing a better job of it than we are.
I think these problems are true on a broader scale. Over at Simple Justice, in a post called “Hitting the Internet Wall,” Scott Greenfield touches on the same problem from a different side. He writes:
[Cross-examining a witness with material from a website] made me competent to talk about [technology] back then. In retrospect, the idea of an old codger like me (meaning anyone over 30) talking about technology is laughable. Today, if you haven’t tried any of the tech ideas that appeared online in the past 30 minutes, you’re out of date. I am, regretfully, out of date.
The technical expertise required to understand what is going on with something even as simple as visiting searching for something on Google is substantial, and the details of what happens behind the scenes can be legally significant. For those of us who have grown up with computers and the internet, certain things come naturally. For the old codgers, new technology must be imperfectly analogized to old concepts. Spyware as trespass to chattels comes immediately to mind. And in the legal world, where precise definitions are needed, imperfect analogies can lead to mistakes.
These sorts of problems aren’t going to go away. The nominal students know more than the teachers when it comes to many aspects of modern technology, and I don’t know of any easy way to fix the problem, other than waiting until the old guard retires and the youngsters move into the roles of power. Of course, if the pace of innovation continues, we will be just as clueless as our former teachers. At least we don’t live in boring times.
May 16th, 2008 at 9:02 am
keep posting stuff like this… this is great stuff
May 19th, 2008 at 8:27 pm
I’m sorry that I talk about The Wire all of the time, but the same thing is happening on the show. The dealers are constantly reforming their methods and tactics in order to stay ahead of the cops and their wiretaps. I’ve read that real pushers on the east coast have been watching the show in order to learn how to avoid the cops. This applies to your article in that as lawyers learn how to teach stuff that is understood better by students, they must also learn to apply that technology to situations where the other guy knows it better.