Both the academy and the legal system often face harsh criticism from the general public. Academia is frequently criticized as being disconnected from the practical realities of daily life, while law is seen as too bureaucratic and slow to address emergent social problems. In contrast, technology is often perceived as disruptive, fast-paced, and so unpredictable that it eludes the control of traditional institutions like academia and the law, which struggle to keep up and restrain it from its potential darker consequences.
This latter perception is pervasive enough to have a name: “the pacing problem.” This term reflects the common belief that law is ill-equipped to address issues of technology due to the disparity between the speed of innovation and the slow crawl of regulatory, legislative, and judicial processes. Some scholars, however, vehemently disagree with this framing.
LSA member Ari Waldman, Professor of Law at the University of California, Irvine, is one such scholar.
“Law plays an integral role in establishing and building and guiding technology,” he argues, referencing Georgetown Professor of Law and Technology Julie Cohen, as well as legal realists and various other scholars. “Law is not catching up to technology…law is a tool that technology companies use to advance their economic design [and] profit-making interests.”
Professor Waldman doesn’t just see fallacies like the pacing problem as a failure to identify law’s role in creating economic engagement, or even just as an excuse for minimal regulation. He also attributes this misconception to the lack of a unifying framework for studying law and technology. Many researchers approach issues of technology and the law from a technical angle, assuming that effective laws cannot be created without an understanding of how technology works. Others find themselves encountering law and technology questions incidentally, through their work in other more discrete fields, such as civil rights law.
“We don’t have a defined or clear or even a set of theoretical frames that help us answer law and technology problems,” Professor Waldman laments.
Not content to merely point out these issues, Professor Waldman is setting out to help create “a more coherent field of law and technology.” Armed with a $10,000 LSA Programming Grant and invigorated by his working relationship with Ryan Calo, University of Washington Law Professor and author of the forthcoming Law and Technology: A Methodological Approach, Professor Waldman is creating a workshop series to begin the process to “develop a theory and practice of privacy, law, and society.” This project, one of five to win LSA funding earlier this year, will enhance sociolegal scholarship while providing additional programming opportunities for LSA members.
This might seem to be an overwhelming task, but Professor Waldman appears undaunted. “You have to start somewhere,” he says, referencing his role as the chair of the Privacy Law Scholars Conference, which he and a group of colleagues grew from an eight-person huddle in 2008 to an established conference attracting 350+ attendees. “You have to start small and see where it goes.”
Professor Waldman’s penchant toward positive action in the face of ambiguity began early in his career. The first in his family to attend graduate school, Professor Waldman initially never saw academia as a viable career path for himself. He felt that practicing law would be a more reliable strategy for repaying his loans, and he didn’t initially receive the mentorship his peers did to become a law professor. One summer, however, while working as a teaching fellow for political philosopher Michael Sandel’s Harvard undergraduate course, he had a breakthrough.
“In one of our sections we were talking, doing a little bit of legal reasoning, trying to see what the moral underpinnings were of certain cases involving surrogacy and other similar things,” Professor Waldman recalls. “Suddenly hands started to go up and I started to brighten.”
“It’s a really great feeling when your students understand, when they can find their way through the muck, and you help them there.”
Despite battling imposter syndrome, Professor Waldman pivoted his career focus to sociolegal research. Moved by a series of suicides by queer youths who had experienced cyberbullying, as well as his own experiences with harassment as a queer youth, Professor Waldman began his career-long exploration of the unique effects of digital interactions on social engagement. Through his involvement with organizations like the Law and Society Association, he was able to develop the supportive relationships he needed to thrive. At his first LSA conference, cyberfeminism and technoprudence scholar Jane Bailey attended his talk on queer adolescents and cyberbullying.
“I was so grateful that someone with her experience and brilliance would take the time to give me feedback,” he shares. “That’s what I think LSA is all about: high quality, interdisciplinary feedback and the opportunity to meet your heroes and make new ones!”
While research, teaching, and engagement with ideas and data gave him more than enough intellectual fulfillment, he was not content to remain at his desk, removed from his community’s struggles outside of the academy. When the battle over marriage equality in the United States reached its peak over a decade ago, Professor Waldman identified the unique role his legal background could allow him to play in creating tangible change. Since then, he has built on this insight, gaining a reputation as an active participant in advocacy and policy circles.
“My theory of change is that academics need to work closely, not just with ‘elite’ civil society, those people that have tight homophilic relationships or networks with people in Congress and fancy people and funders, but also grassroots organizations that are victim-led, queer-led, led by people who bear the burden, bear the brunt of the burdens of a surveillance society,” Professor Waldman says. “I think there has to be this coalition of interest groups and a coalition of workers. So that’s how I try to engage, when I have the time.”
Professor Waldman’s workshop series is still in the planning stages, but his vision for a “series of theoretical and methodological workshops where insights from interdisciplinary fields can inform the development of coherent—and even, perhaps, competing—theories of law and technology and methods for its study” evokes the collaborative spirit of a coalition model. Eschewing a hierarchical approach, the workshops will not include presentations. Rather, participants will submit papers and abstracts to a committee of law and technology scholars, who will then circulate the pieces for all to review. The first meeting will be a facilitated peer commentary session to help each scholar develop their own methods for studying law and technology.
Between sessions, the program committee will identify common themes, which will each receive their own hour-long facilitated discussions in the following meeting. Utilizing the interdisciplinary approach that defines law and society scholarship, participants will contribute their combined perspectives and areas of expertise to “sort through the muck” of the more challenging questions that arise, working together to identify, clarify, and build upon the methodological and conceptual throughlines they discover together.
And it won’t stop there. Professor Waldman sees the workshop continuing indefinitely, with the same core of people meeting virtually and in person each year, potentially collaborating with policymakers and regulators, and perhaps even combining their insights into a book of essays.
While this workshop will particularly appeal to LSA members interested in technology, particularly members of collaborative research networks studying technology, gender, sexuality, political economy, new legal realism, and labor rights, participation will also be open to scholars outside of the organization who are “working on legal implications of advanced technologies in their field who recognize the need for a more well-rounded consideration of theory and method in their work.” This will give emerging law and technology scholars the opportunity to reflect on how their work may fit into the world of law and society.
Application details are still forthcoming; however, the emphasis on deep collaboration means that workshop space will be limited. “Large conferences like the Privacy Law Scholars Conference and LSA are essential,” Professor Waldman explains, “but they are also difficult places to dive into scholarship when so many things are happening at once.”
Professor Waldman has seen firsthand how sociolegal knowledge can be leveraged as a powerful tool for creating real-world change. He currently sits on the board of the Cyber Civil Rights Initiative, an organization founded over a decade ago by industrial/organizational psychology scholar Holly Jacobs and intellectual property, technology, and civil rights law scholar Mary Anne Franks. By combining social, legal, and technological efforts to combat online abuse, CCRI has successfully led the charge in establishing U.S. nonconsensual pornography (revenge porn) laws in almost all 50 states—a feat they intend to replicate at the federal level. The insights and framework developed at the law and technology workshop series, as well as the intellectual relationships fostered therein, will undoubtedly inform this important work.
When it comes to change, nothing meaningful can be accomplished in isolation. In that way, technology is no different than law or academia. All three domains require a diverse network of people with disparate views, skillsets, and resources to unite in the face of uncertainty and develop something new. If they are lucky, that “something new” may change the world. By investing in the nascent law and technology field, Professor Waldman and fellow workshop participants will do their part to ensure those changes benefit the greater good.