Greely, Henry T.

Hernandez, Mark M.

English

University of Florida Levin College of Law

Journal of Technology Law & Policy Volume 15 Issue 1 Article 1 June 2010 Technology Law: What is It—and What Should it Be? Henry T. Greely Mark M. Hernandez Follow this and additional works at: https://scholarship.law.ufl.edu/jtlp Recommended Citation Greely, Henry T. and Hernandez, Mark M. (2010) "Technology Law: What is It—and What Should it Be?," Journal of Technology Law & Policy: Vol. 15: Iss. 1, Article 1. Available at: https://scholarship.law.ufl.edu/jtlp/vol15/iss1/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Journal of Technology Law & Policy by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. Journal of Technology Law & PolicyVolume 15 June 2010 Number 1FOREWORDTECHNOLOGY LAW: WHAT IS IT-AND WHAT SHOULDIT BE?Henry T. Greely & Mark M Hernandez*"What's in a name? That which we call a roseBy any other name would smell as sweet."William Shakespeare, Romeo and Juliet, Act II, scene ii, 1-2.JUST WHAT IS TECHNOLOGY LAW?The law has always had to cope with technologies, internally andexternally-from quill pens and horse-drawn carriages to typewritersand horseless carriages to computers and spacecraft-but it is only overthe last few decades that American law schools have discovered, at leastin some settings, "Technology Law." One database of law journals andreviews contains 40 American law reviews under the subject of"Science, Technology, and Computers."'On the other hand, few if any law schools seem to have coursescalled "Technology Law" or "Law and Technology." The AmericanAssociation of Law Schools (AALS) Directory of Law Teachers allows* Henry T. Greely is the Deane F. and Kate Edelman Johnson Professor of Law;Professor, by courtesy, of Genetics; Director, Center for Law and the Biosciences; StanfordUniversity. Mark M. Hernandez is Greely's research assistant and a Stanford J.D. student in theclass of 2010. Greely had the idea of this paper and drafted it; Hernandez was responsible forthe collection and organization of the data. The two of them jointly hashed out what it meant.1. The Washington and Lee database can be reached at http://lawlib.wlu.edullj/. On April1, 2010, Greely searched for all U.S. journals under that subject. He also found 44 differentjournals under the subject "Health, Medicine, Psychology, and Psychiatry," and 24 differentjournals classified as "Intellectual Property." Some journals were listed in both topics-theoverlap was particularly notable between the Technology and Intellectual Property categories.Of the 56 journals listed under Intellectual Property, 32 were also contained in the Science,Technology, and Computers. The Health category, on the other hand, had almost no overlap-one of its journals appeared in Science, Technology, and Computers and none appeared inIntellectual Property. There were also two journals indexed under "Air and Space."IJOURNAL OF TECHNOLOGYLAW& POLICYlaw professors to identify themselves as teaching one or more subjectmatter categories.2 The list of "Law Teachers by Subject" for 2009-2010gives faculty 104 different options.' It includes nine categories thatseem related to Technology Law-"Aviation and Space Law,""Bioethics," "Communications Law," "Computers and the Law,""Forensic Medicine," "Health Care Law," "Intellectual Property," "Lawand Medicine," and "Law and Science"-but neither "TechnologyLaw" nor "Law and Technology."'As someone who specializes in what I call "Law and theBiosciences"-the ethical, legal, and social implications of newbioscience discoveries-I have noticed that some people includebiological issues within "technology law," but others restricttechnologies to the physical sciences, and particularly to computer-based technologies. An old division and rivalry between physics andbiology seems to be alive, but inconsistently. in the understanding ofthis term.So, what does Technology Law mean? What should it mean? Anddoes it matter? This foreword will briefly explore both questions.WHAT DOES LAW AND TECHNOLOGY MEAN?In some languages-French is the obvious example-anauthoritative body defines the language and its words, their meanings,spellings, and other attributes. English, in spite of regular handwringingabout its decline and fall, has no language dictator. Various dictionaries,created by companies expecting to profit from selling them, may hopeto influence spelling and usage, but the only real way to determine whatwords or terms mean in English is to see how people use them.So who uses the terms "Technology Law" or "Law andTechnology"? Lawyers and law firms that talk about their "TechnologyLaw" or "Law and Technology" practices may be one large user. Manyattorneys included in the Martindale-Hubbell Listings include in thedescription of their "practice areas" terms that use the word"technology," such as Technology Law, Intellectual Property andTechnology; Technology, Media, and Communications; Information2. THE ASSOCIATION OF AMERICAN LAW SCHOOLS, available at http://www.aals.org/ (lastvisited Apr. 5, 2010).3. Id.4. Id.2 [Vol. 15Technology; Technology and Science; and others.' (An electronicsearch of the directory in Lexis/Nexis showed 765 attorneys inCalifornia alone with the word "technology" in the practice areasegment).' And law schools may also use the terms, even if the AALSdoes not recognize teachers by such a category. But, in spite of thewonders of Google's technology, the meanings of the terms when usedby either lawyers or law schools are not easily searchable. Law andTechnology journals, however, can be searched and their contentsexamined to see how, in practice, they define the term.The first part of this Foreword describes the results of some limitedempirical research. We (that is, Hernandez) gathered the tables ofcontents of all issues with publication dates in or after 1999 for nine"technology law" journals:Berkeley Technology Law JournalDuke Law & Technology Law ReviewHarvard Journal of Law & TechnologyJournal of Technology Law and PolicyJurimetrics (published at Arizona State University)'Michigan Telecommunications and Technology Law ReviewStanford Technology Law ReviewVirginia Journal of Law and TechnologyYale Journal of Law and TechnologyWe chose these journals largely because they came from some of themore prestigious law schools. According to the "combined ranking"from the Washington and Lee law review database, in 2009, these ninejournals included the top four journals among the 40 members of theScience, Technology, and Computers category, as well as numbers six,12, 14, 15, and 25.8We then created some broad categories for defining the subjects ofarticles in these journals. Greely started with three general categories:5. MARTINDALE HUBBLE LISTINGS, available at www.martindale.com (last visited Apr. 5,2010).6. Searched on April 1, 2010 with "PRACTICE-AREAS (technology) and STATE(california)." A search without a limitation to state returned a message that there were more than3,000 results.7. Jurimetrics is published by the American Bar Association's Section of Science andTechnology and the Center for the Study of Law, Science, and Technology at the Sandra DayO'Connor School of Law at Arizona State University. It is the only journal among these nine tobe peer-reviewed.8. wASHINGTON AND LEE RANKINGS AND SUBMIssIoNs, available at http://lawlib.wlu.edu/lj/ (last visited Apr. 5, 2010).2010] FOREWORDJOURNAL OF TECHNOLOGY LAW & POLICYbiology-related ("carbon-based"), computer-related ("silicon-based"),and "other." Hernandez then refined this classification scheme as hereviewed the tables of contents for each issue. He subdivided thecategories further, as follows:Carbon-Based ArticlesHealth and MedicineGenetics, Cloning, and Stem CellsThe Human BrainBiotechnologySilicon-Based ArticlesThe InternetComputers and SoftwareMedia and CommunicationsIntellectual PropertyOther ArticlesScientific Developments (and Their Consequences on the Law)Privacy and SecurityThe Economics of Technological DevelopmentsTechnology's Influence on the Art and Science of LawyeringFrom 1999 on, the nine journals published 1051 articles. Hernandezassigned each article to a primary category. Where he could make theassignment with confidence based on the title, he did so. When the titlewas unclear, he examined the article itself. When he believed that anarticle also had a second strong focus within these categories, he gave ita secondary classification. This was the case for 159 articles.The resulting database can be mined in many different ways, and weare considering doing further analyses of it. For our present purposes,though, the resource can tell us, in a very concrete way, what"technology law reviews" treated as "Technology Law" topics, basedon what they actually published. Here are the results:Intellectual Property 345 32.8%Silicon-Based Articles 315 30.0%The Internet 197 18.7%9. In making these decisions, Hernandez also made some judgments about where certainsubcategories belonged. Most notably, he suggested that "Intellectual Property" be put in theSilicon-Based category because most of the intellectual property in these journals seemed torelate much more strongly to computer issues than to biological issues. After reviewing hiswork, Greely concluded that, given the sheer number of Intellectual Property articles and theirbroad scope, it made more sense to list them separately. A closer examination might usefully tryto dissect out what kind of intellectual property issues the articles discuss.4 [Vol. 15FOREWORDComputers and SoftwareMedia and CommunicationsOther ArticlesScientific Developments (andTheir Consequences on the Law)Privacy and SecurityThe Economics ofTechnological DevelopmentsTechnology's Influence on the Art andScience of LawyeringCarbon-Based ArticlesHealth and MedicineGenetics, Cloning, and Stem CellsThe Human BrainBiotechnology368221864813.4%7.8%20.7%6.1%7.7%45 4.2%2817356_929142.7%16.5%5.3%8.8%0.9%1.3%A few conclusions jump out of this table. Technology law reviewsdo, in fact, publish substantial amounts of work in all four majorcategories. No one category comprises a majority, or even close to amajority. Apart from Intellectual Property, which accounts for nearly athird of all the articles, only the Internet supplies the topic for more than10% of the articles. The combined bioscience field of genetics, cloning,and stem cells is the next largest subcategory with nearly 9% of allarticles.A look at the underlying data makes it clear that the popularity ofvarious topics and categories vary with time. Articles about cloning, notsurprisingly, are more common in the early years of this sample; five ofthe nine articles about the brain are from 2009 and two of the remainingare from 2007 and 2008. Only 32 (about 1/6th) of the 197 articles aboutthe Internet are from 2007 and later. It does seem, not surprisingly, that"Technology Law" shifts its contents over time as different technologiescome into prominence.Less obviously, different journals prefer different topics. Jurimetricsaccounts for a disproportionate share of the articles on genetics, cloning,and stem cells; the Harvard Journal of Law and Technology provides alarge share of the recent articles on the Internet. It is unclear whetherthese are the result of chance, though it is at least plausible that theinterest of the host school's faculty may affect the topics student editorschoose (and student authors write about). Thus, the concentration ofrecent Internet articles at Harvard may have some connection to thepresence on the Harvard Law School faculty of Professor JonathanZittrain.2010]1JOURNAL OF TECHNOLOGYLAW& POLICYWHAT SHOULD TECHNOLOGY LAW MEAN?Much more could be said about what the data indicate, but it will notbe said in this Foreword. We want to turn from the descriptive questionto the normative ones-what should technology law mean-and does itmatter?We will take the second question first. Yes, it does matter, or, atleast, it can matter. Journals both reflect and create communities-ofauthors, readers, and editors. The subject matter that appears in ajournal helps define what the community thinks of itself. If someonewho identifies herself as interested in "Technology Law" looks at thesenine journals, she will conclude that Technology Law is a broad term,broader than, say, just the silicon-based world. She will be exposed topeople, topics, and ideas that she would not otherwise see. The journals'contents will affect the contents of people's minds, and hence ofcontents of the field.Ironically, changes in technology may be undercutting some aspectsof this field-creating function of journals. It used to be (when lawstudents and law professors walked five miles barefoot through thesnow to get to class, uphill in both directions) that reading a law reviewarticle meant picking up a physical law review, either a single issue or a(usually heavy and awkward) bound volume. Looking for an article oncloning would inevitably take the reader past pieces on the Internet orpatent policy. A few people (though very few) would even get asubscription to the journal, or be on a distribution list for the journal,and would browse its contents. Now, for readers, that unavoidablebrowsing, with its occasional wonderful serendipity, is largely gone. Anelectronic search brings up the article the reader wants and not the onebefore it or the one after it. (This may have always been largely true ofauthors, who read the journal issue, if at all, in their own reprints, unlessthe issue contains several articles on their topic.) 0This field-defining benefit may, therefore, now be less important forgeneral readers, but it still remains important for the editors, almostalways students, who produce these law reviews. They will be readingsubmissions on a wide variety of topics and will understand the field asa mix of many topics. And, in the long run, it is the new people cominginto the field who determine what that field means going forward. Theexperiences of the editors of the 40 American technology law reviews10. In that case the author will certainly at least skim the other articles to see how, often,and whether he or she is cited-and may occasionally absorb more information from them.6 [Vol. 15are not insignificant in shaping the field of technology law. Assumingabout 15 editors per journal per class, they would be roughly 600 newlawyers a year with a particular interest, and a broad understanding, ofTechnology Law.But the preceding discussion just deals with whether the breadth oftopics covered does matter. It does not address whether the reviewsshould define "Technology Law" broadly. I believe they should, for thefollowing reason.Scholarly communities provide value when their members connectwith each other. A journal of "Law and Horses or Television" would notprovide much extra value. Some people will be interested in the law ofhorses and some in the law of television, but they seem unlikely to havemuch to say to each other about their interests (apart from a possibleappreciation of the old sit-com, Mr. Ed). Their knowledge and insightsare unlikely to add value to each other.I believe the opposite is true of Technology Law, broadly defined.The carbon-based scholars and the silicon-based scholars will havemany different interests, but they will also have important sharedinterests.Both fields are interested in privacy, albeit in very different ways.Greely recently was the only speaker of about 30 at a conference onprivacy sponsored mainly by computer- and Internet-oriented groups. Iwas the only person to speak about the special issues concerning healthprivacy. (One other speaker talked about the carbon-based issues offorensic use of DNA). It was interesting and important for me to heartheir very different perspectives; I think it was important for them tohear mine.Both fields are interested in intellectual property, though, again,often in different ways. Movement on reforming the patent lines haslong been stalled in Congress in part by the conflicting interests of theelectronics industry, on the one hand, and the pharmaceutical andbiotechnology industries on the other. Understanding each other'sperspectives may make compromise more likely-or at least makestalemate less frustrating.Both fields are interested in forecasting the consequences of newtechnological developments and how societies and governments willattempt to deal with their introductions. The relative lack of regulationin the silicon-based fields contrasts sharply with the heavy regulation of2010] FOREWORDJOURNAL OF TECHNOLOGYLAW & POLICYmany carbon-based advances, performed by the Food and DrugAdministration and others.Certainly there are many issues that affect only one part ofTechnology Law, with few if any implications for other areas. But whenimportant issues, or experiences, arise in different technologies, havingforums to discuss them, and having trained lawyers who have some ideaabout both technologies, should prove quite useful.CONCLUSION"In real life, unlike in Shakespeare, the sweetness of the rosedepends upon the name it bears. Things are not only what theyare. They are, in very important respects, what they seem to be."Vice President Hubert H. Humphrey, March 26, 1966"We all live in many different overlapping circles. We are citizens,family members, students, teachers, readers, and writers. We formcommunities around our shared interests and some of thosecommunities, like some of those interests, will be closer than others.The Internet Law community is different from the Patent Lawcommunity, which in turn is different from those that form around Lawand Genetics or Privacy Law. But we can, and should, build higher-level communities when we have things of mutual interest and value toshare.At least as defined by the concrete reality of what is published intechnology law reviews, Technology Law is now such a broadcommunity. We need to recognize that breadth and to make sure thatTechnology Law not only is broad but seems broad. In that way we canhelp it remain broad, and broadly open to the inevitable new fields oflaw that science and technology will bring us-and, in so doing, helpour law and our society maximize the benefits of new technologies andminimize their harms.11. ROBERT ANDREWS, THE COLUMBIA DICTIONARY OF QUOTATIONS 616 (Columb. Univ.Press 1993 New York).[Vol. 158

Technology Law: What is It—and What Should it Be?

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Technology Law: What is It—and What Should it Be?

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