Coates, Joseph F.

English

University of Denver

Denver Law Review Volume 47 Issue 4 Article 57 April 2021 Saving Us From Ourselves: The Interaction of Law and Science-Technology: Comment Joseph F. Coates Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Joseph F. Coates, Saving Us From Ourselves: The Interaction of Law and Science-Technology: Comment, 47 Denv. L.J. 667 (1970). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COMMENTBy JOSEPH F. COATESINCE Professor Jones has sufficiently dealt with the latter portion ofDr. Curlin's paper, covering the craft aspects of implementing hisvarious proposals, I will limit the scope of my remarks to the first partof the paper, which in my estimation contains most of the dubious andquestionable assumptions.In my opinion, Dr. Curlin's entire argument concerning assessmentand the disruptive role technology plays in social change cannot only behandled without the intrusion of values, but insofar as this is done, theresult will be a cleaner and more precise analysis. In other words, moraltone, as a force behind analysis, ought to be diligently and totally ex-punged. Thus, if one is to perform a professional job of analysis, hemust be, in a very real sense, antiseptic - he must be free of the adver-sary position.An example of the disruptive effect of technology vis-a-vis socialchange was noted in Curlin's reference to the automobile. The resultingdisruption, he suggests, may be seen in the development of the suburbsand the corresponding death of the core-city. Indeed, we do havesuburbs, and we have had a decline of downtown areas, but the maincause has not been technology; instead, it is a rather perverse set oftax incentives which has caused this phenomena. Thus, the issue is notprimarily technological; rather, it is a traditional issue of manipulatingfiscal agencies by means of public policy. Simply because technologyis one of several components which comprise the system with whichone happens to be distressed, it does not necessarily follow that tech-nology, rather than some traditional component, is the thing to bemanipulated.Perhaps it is equally fallacious to assume that when our presentinstitutions, the market, the courts, and the legislatures, engage intechnology assessment, they are ineffective.I suspect that the common beliefs about these institutions aseffective technology assessors are irrelevant due to the failure to utilizethe institutions for that purpose. Moreover, even where there has beenutilization of the institutions, it has not been accompanied by aneffective evaluation of the derivative benefits. Therefore I would con-tend that one has to look past the question of whether it is actuallytechnology which is at fault in order to develop new insights as towhere to probe in the manipulation of public policy. To support thishypothesis, I will address my comments to two of Curlin's "traditionalactors," the market and the legislature.DENVER LAW JOURNALCurlin concludes that the market has failed as a viable assessmentagency; however, the important question is not whether the market hasindeed failed, but has it ever been tried?I would suggest a two part answer: First, certain aspects of themarket institution have not been tried, and second, the parts that havebeen tried have not been properly evaluated. An example of thisimproper evaluation, which results in an improper assessment, can benoted in the area of liability insurance.Looking at the insurance industry, one can see that it is the leadingadvocate of unsafety. The entire operation of the insurance industrydepends on the establishment of an investment pool. That investmentpool, in turn, is extremely elastic due to its dependence upon rates.The only method by which that pool can be increased is to have peoplewho need insurance. Clearly, one needs insurance because he has areal or perceived risk. Therefore, in a simple economic analysis, theinsurance industry is the major public advocate of unsafety. If youaccept this notion, the question is, what are the tools that could be usedto manipulate the insurance industry, and in turn, to manipulate tech-nology. The main sources that should be checked for an answer maybe social institutions, social invention, and social technology, not hardphysical technology alone.The second of Curlin's "traditional actors" which I wish to com-ment on is the legislatures. Curlin suggests that due to the adaptabilityof the legislative process, the legislatures are the most effective vehicleof technology assessment presently available. I cannot agree. We livein a crisis-susceptible society. The crises of the fifties established thepublic policies that today are routine. Similarly, the crises of the sixtiesare already embedded in our political system. Therefore, I submit thatour legislatures respond to the crisis of the moment. They do notrespond to opportunity, nor do they anticipate crises, except in a rathernarrow way. Thus, it is a serious error to suggest that the legislaturesare effective technology assessors. Even though that may be one oftheir legitimate roles, they have not performed that function in thepast.Having briefly voiced my doubts as to the efficacy of the marketand the legislatures as viable assessment agencies, I would like to turnnow to the more specific issue of the components of an assessmentagency, in whatever form.While it is generally agreed that an assessment institution musthave a significant research component at its disposal, I must stand withthe minority and question this assumption. I do not think that thereshould be a committment to one kind of institution, or one kind oforganization. Rather, since technology assessment can come in so manyforms, during such a long span of time, with variable durations, weVOL. 47COMMENTought to encourage various types of institutions to field assessments.I do not mean to imply that one needs a physical facility to do physicalresearch, in order to conduct technology assessment; rather, I thinkthat, as a preliminary notion, one ought to look at technology assess-ment as essentially a paper and pencil enterprise in which the paper andpencil serve as conduits for the mind's communications concerning thefuture. Assessment is primarily analytical - synthetic, not experimental.Since assessment is essentially an anticipatory activity, we shouldalways try to keep the beneficiary of the activity in mind; otherwisethe characteristics of the assessment will not be quite right. Moreprecisely, there may be serious differences between the temper, thescope, and the intensity of the assessment, depending upon whetherit is directed toward legislative or regulatory action. On one hand,regulatory action seems to imply a need for a more intense awarenessof the details of technological alternatives and practical consequences.On the other hand, if one is doing an assessment at the legislativelevel, it may require a different kind of assessment, since the objectivemay be the formulation, rather than the execution, of a given policy.I would suggest that we should be concerned with three basicissues. The first is the influence technology has upon environment andbehavior. The second involves issues focusing upon the prevalence ofpeople - criminal aspects, privacy issues, and so on. The third, whichfollows from the other two, and toward which I think there is strongavoidance behavior, is the fact that central planning is the order of thefuture. Unless the legal system is restructured, and fundamental cogni-zance is taken of the drive toward central planning, I think that thelegal structure will remain inchoate in its dealings with science andtechnology.My conclusion is that in any social dislocation, insofar as there isan apparent, highly technological component, one ought to automatic-ally ask the question: Is there a complementary social-technologicalcomponent, which either is a main component, or which could be amain component in the manipulation of the problem? I would argue,for example, that lawyers ought to be aggressively exploring newmeasures of manipulating the insurance industry, which may indirectlymanipulate technology. The point of my emphasis, and the implicationthat there is a growing need for a determination of how to explorefor society, is that social technology may be a dominant factor in ourcorrective enterprises. The subsidiary implication for law schools isand proliferate new social technology. Given the fact that there is afundamental dislocation between the structure of society and the struc-ture of law, I suggest that the solution may lie in a total transformationof the law. If we accept the fact that a transformation is needed and1970DENVER LAW JOURNALwe do not inform our law schools and student lawyers of this impendingrevolution, we will be doing them, and society, a disservice.Basically then, in regard to technology assessment, I believe Curlinis wrong. He says that the object of technology assessment is to increasethe desirable second order consequences and reduce to a minimumthose second order consequences which are unintended, unanticipatedand undesirable. I question whether that is really the intention oftechnology assessment. It seems to me that it is not. Technology assess-ment is the instrument by which one explicates alternatives, and theobstacle that must be overcome is the development of suitable andincisive methods for bringing about analysis and exploration of alterna-tives. Assessment is something which has to be carried on continually,as the unanticipated second and third order consequences of techno-logical exploitation become apparent. As such, technology assessmentis a tool for the policy maker; it is not the policy maker. It should beviewed by the policy maker as a conceptual enterprise, not a scientificenterprise, to probe the future.VOL. 47

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