Law, Tech & Society (Fall 2021)

Overview

In this seminar, we will learn to think about how the world we live in shapes and is shaped by technology, and what the role of law is and should be with respect to regulating technology’s creation, use, and effects. We will learn to analyze the relationships between technology, law, and society through theoretical and critical lenses. We will examine how law and policy interacts with the development and proliferation of new technologies, or new applications of existing technologies. We will examine the challenges that legislators, judges, and regulators face when acting in contexts affected by technology, including uncertainty about the future, lack of technical expertise, and the speed at which technology develops. We will learn to synthesize insights from a variety of sources and fields in our discussions and in a final research paper.

Course Objectives

By the end of this course, you will be able to:

  • Articulate what it means to think about technology through a sociotechnical lens, and why it matters.
  • Scrutinize the ways in which technologies can be beneficial or harmful to society.
  • Describe the differences between how legal actors, such as judges, legislators, regulators, and in-house counsel at technology companies interact with technological development.
  • Examine the role and limitations of law in regulating the social effects of technology.

Class Meetings and Office Hours

We will meet Tuesday 5:30–7:30 PM, in Room 3473. Office hours will be by appointment.

Materials

There is no assigned textbook for this seminar. We will primarily discuss journal articles, news articles, cases, book chapters and other materials. Many of the assignments below are hyperlinked, but readings that are not will be posted in the course OneDrive folder.

In two of the weeks this semester, we will be reading large portions of books: Ruha Benjamin’s Race after Technology, and Danielle Citron’s Hate Crimes in Cyberspace. I recommend purchasing physical copies, so you can mark them up, take notes, and bring them to class, but they are also available online through the UC Library system, and that is a free way to access them.

The OneDrive folder also has a space where each of you can upload interesting discussion materials that are relevant to the class, like news articles you see. If you upload something, please just let me or the class know via email what it is, so we can enjoy and discuss it.

In addition, for assistance with the research paper, I recommend Professor Volokh’s book Academic Legal Writing. (It doesn’t really matter which edition, though later is probably at least a little better.)

Attendance

Regular attendance is required for all classes at UCLA Law, and is especially important in seminars. Pursuant to our academic standards, students who do not regularly attend class may, at my discretion, be prohibited from turning in a final paper, resulting in a grade of “F” or being dropped from the class. Students for whom this may be an issue will receive a written warning before this final action, and may need to attend all remaining classes after the written warning is given. If you must miss a class because of a medical need, or serious familial, religious, or professional obligation, please email me at least 2 hours before class to request an excused absence. It should go without saying by now, but if you feel ill or experience symptoms of COVID-19, please email me for the excused absence and do not come to class.

Grading

Your grade will be based on class participation (40%), weekly reading reflections (10%) and a final research paper as described below (50%).

Class Participation

This is a course centered on small-group discussion, and class participation counts for 40% your final grade. I cannot stress this enough: If you do not want to be an active participant in class discussion, do not take this course. Participation is required, and you will not receive a passing grade if you do not contribute meaningfully to the discussion. We are here to learn from and teach each other, and if you do not participate meaningfully, you are depriving not only yourself, but your classmates as well.

You will be assessed on the quality, not the quantity, of your participation. In this seminar, we will read challenging material, often from types of sources that law students do not typically engage with. The unfamiliarity of these texts means that you will probably not have well-developed notions going in about how you are supposed to engage with them. That is intentional. We each bring our own valuable perspectives and expertise to the discussion, and the lenses through which each of us sees the readings are as interesting and important as the readings themselves. Quality participation, therefore, does not mean that you understand the material fully and completely with the perfect interpretation. Rather, quality participation means thorough preparation and thoughtful engagement that enriches class discussion and thus helps us all learn.

The Classroom Environment

I want to ask for three things from you in creating the classroom environment that is conducive to learning: presence, generosity, and security. First, I ask for presence. We are engaged together in a semester-long intellectual exploration, and I hope you will be present for it, as much as you are able. This goes beyond simple physical attendance or even preparation. I encourage and invite you to bring into the class as much of your attention, your curiosity, your interest and imagination, as you can.

Some of the topics we face in here may be difficult, not just intellectually, but emotionally or politically as well. In daily life, we may often face strong pressure to embrace, or to reject, particular opinions in matters of law and policy. On some issues, this can be part of how we express our values and define ourselves. The seminar room is an intentionally different kind of space: It is a safe place to play with new ideas, to try on arguments, to entertain controversial, uncertain, or unpopular views. Advocating a position with which one actually disagrees can at times be fruitful. In any event, I expect you to honor one another’s intellectual growth by making an active effort to hold your mind open to new perspectives.

Therefore, the second thing I ask is that you be generous toward the ideas you encounter here — whether from me, from the readings, or from our shared discussion — in a specific way: seek out the strongest version of each idea, before responding to it. Ask yourself, “what’s the smartest thing this person (or this text) could possibly be trying to say?” Then, respond to that, including with spirited objections if they arise for you.

Third, I ask that you work with me to create conditions in which we can feel secure in taking intellectual risks. Specifically, please do not quote your classmates outside of class without first obtaining their permission. Views expressed in the seminar are part of the learning process, and may not reflect the speaker’s fully developed view. Conversation is a vehicle that helps us discover and develop our perspectives.

Weekly Reading Reflections

Each week, by 2:30PM Tuesday, you must post your reflections on the week’s readings on the MyLaw discussion board. These reflections can be a few paragraphs, the equivalent of a page or two at most. You should not summarize the readings and you need not discuss all of the readings in a given week. The aim is merely to inform your classmates and me what the readings made you think about, in order to facilitate and enrich class discussion. I will read all of your reflections before class, and I expect each of you to do the same.

The sum of these will make up 10% of your final grade, and you will receive full credit if you demonstrate that you have done the readings and thought about them. You may skip one week, with advance notice, no questions asked. Any more than that, and it will affect your grade negatively, except in emergency circumstances.

Final Paper

The remaining half of your grade will be determined by an original research paper. In it, you should do new factual and legal research to explore a topic related to law, technology, and society that we do not cover in class, or a new aspect of a topic we do cover.

You may choose whether to have the paper satisfy the SAW requirement. If your paper satisfies the requirement, it should be somewhere in the 25–40 page range. This is only a guideline. The rule is that the research must be “substantial,” and though this is perhaps not helpful as a directive, my view is that you should write exactly as many words as needed to make your arguments well. I am giving you an approximate page count to explain that I anticipate that something in that range will accomplish the task. If you go under that range, I anticipate that it will not meet the SAW requirement, and if you greatly exceed that range, your claim must be large enough to justify the extra length used to defend it. If your paper does not satisfy the SAW requirement, it can be shorter, somewhere in the 15-20 page range.

The paper will be evaluated on clarity and organization, the integration of sources and analytical arguments to back up your claims, and a demonstrated facility with the concepts we cover in class. This last part is important to me. This class is about the interweaving of law, technology, and society, and this is your chance to demonstrate to me that you have absorbed the analytical frames and concepts that are central to the class. The goal is not to parrot those concepts back at me—you need to write about whatever excites you—but for me to be able to see how the concepts in the course have influenced your thinking. (Hint: If you write about technology as if it were entirely separable from the people who build, use, and otherwise interact with it, you’re going to have a bad time. You will see what I mean in the first couple weeks.)

Depending on whether you are aiming to satisfy the SAW, you must complete either two or three assignments on the way to the final paper. Each of these must be submitted before the start of class on the specified due date. Failure to adequately complete these assignments on time will result in automatic single-step letter-grade deductions from your final paper grade. Please submit the assignments in the student Drop Box on MyLaw, as a Word document titled as: “Paper_Proposal.docx”, “Outline_and_Bibligraphy.docx”, “First_Draft.docx” or “Final_Draft.docx”, as appropriate. Do not include your name; the Drop Box takes care of that. Please number your pages as well. Doing this correctively ensures that I will be able to give you credit for having turned it in.

Paper Proposal (Due Week 4, 9/14; mandatory for all students):

You must submit a paper proposal. This should be 1–2 pages, and will consist of a proposed abstract for your paper, identifying the topic you wish to explore; some open questions; a rough sketch of the paper’s expected thesis; and an indication of whether you plan to use the paper to fulfill the SAW requirement. For this assignment, you will need to do some initial research to understand what is out there already. I also expect this thesis to change as you research more, so do not worry about it being perfect; I just want to make sure you’re on the right track and asking the right sorts of questions.

In the following week, I will return the proposals with comments. But feel free to check in with me as you think about topics before your proposal is due.

Annotated Paper Outline and Initial Bibliography (Due Week 8, 10/12; mandatory for all students):

Next, you must submit an annotated paper outline and initial bibliography. By this time, you should have done substantial research and understand your argument decently well. I expect you to outline the paper at a level of detail such that I can understand your thesis and each step of the argument by reading the outline. Please annotate the outline at the key points needed to make this happen. For the bibliography, you should provide ten sources and for each, a few sentences explaining what it is and how it fits in the argument of your paper.

I will return the outline with comments the following week, and will make time to meet with each of you that wants to meet and discuss the paper. It is imperative that you lay out the outline and annotation in a tight, organized manner. I’ll have many of these to read; if you do not give me information in an organized enough way, my feedback will be less helpful.

First Draft (Due Week 12, 11/9; mandatory for SAW papers, optional for others):

If you are aiming to satisfy the SAW, your first draft is due four weeks after your outline. This first draft should be as close to your finished product as you can make it, to spare you from having to make big changes during finals period. I will not be grading them yet, but I will offer feedback. I hope to turn them around within about 10 days, to give you a full four weeks to work on the final draft. If you are not satisfying the SAW requirement, then you may turn in a first draft, and I will provide feedback, but it is not a requirement.

Final Draft (Due at the end of finals period, 12/17):

Self-explanatory. This is final the product that will be graded.

Accommodations

UCLA Law strives to provide accommodations in a way that supports students with disabilities while maintaining their anonymity and the fundamental nature of our law program. As such, students needing academic accommodations should not contact their professors directly, but contact Carmina Ocampo, Director of Student Life or the UCLA Center for Accessible Education (CAE) When possible, students should start this process within the first two weeks of the semester, as reasonable notice is needed to coordinate accommodations. 

Resources for Health and Wellness

Students needing assistance with medical or mental health issues, substance abuse, anxiety or depression or other health-related matters should contact the Office for Student Affairs, UCLA Counseling and Psychological Services (CAPS) at 310-825-0768 (Courtney Walters is the counselor regularly assigned to the law school) or the Ashe Student Health & Wellness Center at 310-825-4073.

Course Schedule

The first third of the course will be dedicated to thinking about what technology is and what it means. We will interrogate the idea of technology as an object, and explore the social systems and power structures that co-create technology, often determining aspects of its creation, use, and effects on people. We will spend this portion of the course developing a vocabulary that is associated with these questions in the scholarship. Class readings will mix classics with newer iterations of similar questions. (5 classes)

The second third of this class will apply our newly acquired theoretical frameworks to several different current issues. How do the technology, legal issues, and social or cultural issues interact? How much of the effect of a technology new, and how much is attributable to existing societal structures? What kinds of problems does the technology raise, and how can law best respond or anticipate the problems? (4 classes)

The final four classes will be run by you all. I will ask you each to submit one reading selection to the class—whether a news article or an academic article or something from another discipline—to open discussion of your paper topic. I will also ask you to bring in and share an update version of your annotated outlines, to help us understand the topic. Then you should come to class with prepared to lead a half-hour discussion on your paper topic.

Readings

Week 1: Technology, Politics, and Society

What is technology? What does it mean to ask whether technology is social? Political? This week, we’ll probe the definition of technology and examine how and when it makes sense to speak about technology as having political or normative attributes. We will also have some time to get to know each other and go over the plan for the course.

  • Donald MacKenzie & Judy Wajcman, Introductory Essay, in The Social Shaping of Technology (1985).
  • Langdon Winner, Do Artifacts Have Politics? (1980)
  • Adrienne LaFrance, Facebook Is a Doomsday Machine (2020)
Week 2: The Social Construction of Technology

This week we will discuss the social construction of technology. This theoretical framework is a way of understanding technologies by interrogating how they are formed, what choices were made along the way, and for whose benefit. The readings this week are about older technologies that we are now quite familiar with, but as you read, try to think about how the arguments apply to newer technologies we use daily, and those discussed and debated in the news today.

Week 3: Regulating Technology

How do we regulate technology effectively? Can law keep up with the pace of technological development? Does technology drive legal change? This week we will think about ideas such as the pacing problem, the Collingridge dilemma, technological exceptionalism, and technological neutrality to ask how to best approach regulation in a world of developing technology.

  • Gary E. Marchant, The Growing Gap Between Emerging Technologies and the Law (2011)
  • Meg Leta Jones, Does Technology Drive Law? The Dilemma of Technological Exceptionalism in Cyberlaw (2018)
  • Lyria Bennett Moses, How to Think about Law, Regulation and Technology: Problems with“Technology” as a Regulatory Target (2013)
Week 4: Technology as Regulation

Paper Proposal Due

If you speak to technology law scholars and practitioners you’ll sometimes hear the phrase “code is law.” But what do we mean by that? Last week we discussed the regulation of technology; this week it’s regulation by technology. How does technology regulate? How are regulation by law and regulation by technology similar? How are they different? How can translating legal requirements into code distort their meaning? When is that an acceptable risk?

  • Lawrence Lessig, What Things Regulate?,Chapter 7 in Code 2.0 (2002)
  • Danielle Citron, Technological Due Process, (2008) (Parts I & II)
  • Karen E.C. Levy, Book-Smart, Not Street-Smart: Blockchain-Based Smart Contracts and The Social Workings of Law (2017)
Week 5: Technology and Race

How does technology encode race or racism? Those of you in the Critical Race Studies Program might have noticed certain similarities in critical approaches to technology and critical approaches to law. For example, both CRT and STS aim to unearth claims to neutrality that hide value judgments and drive inequities. This week will discuss how technology can reinforce racial hierarchies and how law can or should respond.

  • Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (2019) (read Ch. 1, 2 & 5)
    • You only need to prepare the designated chapters, but the whole book’s well worth reading if you have the time.
  • Joy Buolamwini, TED Talk, How I’m Fighting Bias in Algorithms (2016)
Week 6: Technology, Invisible Labor, and Gig Work

Technology requires human labor, but often renders that labor invisible to increase the allure of automation. Humans build the technology but we don’t know who they are or why they did when we use it. In many cases, supposedly automatic technologies shield the user from seeing the human labor that is required to make it work. What is this invisible labor? How does this affect how we treat the technologies themselves? Sometimes technology is used to mediate labor, resulting in the “gig economy.” How does this change society’s relationship to that labor and what are the legal ramifications?

Week 7: Flexibility, Ownership, and Innovation

The ways in which technology gets put to use, and by whom, are often unexpected. Manufacturers have historically wanted to lock down unintended uses, for security or profit, but can that desire be reconciled with property rights and innovation? Should consumers have a right to tinker, a right to repair? What should regulators do? Whose interests are considered when regulators make such decisions?

  • Ronald Kline & Trevor Pinch, The Social Construction of the Automobile in the Rural United States (1996) (read 763–65, 773–95)
  • Jonathan Zittrain, The Generative Internet, (2006) (Parts II & III)
  • Tim Wu, The Foreign Attachment, Chapter 7 in The Master Switch (2011)
  • Lauren Goode, The FTC Votes Unanimously to Enforce Right to Repair (2021)
Week 8: Gendered Digital Harms

Outline and Annotated Bibliography Due

Technology can enhance harmful and abusive patterns in society, especially for anyone who is not a heterosexual cisgender white man. Women and transgender people in particular face abuse online and off in the form of cyberharassment and cybermobs, and intimate partner abusers can sometimes find that the affordances of technology offer new techniques to assert and maintain their control. Things to focus on in the reading include questions about what’s new or different about this situation, and how much it is even a problem of technology? How does the design of the technology encourage this behavior? How can or should the law address these issues?

Note: This is a challenging topic to discuss, and the readings may be difficult to get through for some of you. I am putting this on the syllabus because as challenging as it may be, I believe it is extremely important to understand the relationship between these kinds of harms and technology, and these discussions are too often considered secondary in society. Because of the sensitivity of the topic, I ask that we take special care this week to be kind, generous, and sensitive to others’ experiences that may differ from our own.

  • Danielle Keats Citron, Hate Crimes in Cyberspace (2014) (read ch. 1–3)
  • Diana Freed et al, “A Stalker’s Paradise”: How Intimate Partner Abusers Exploit Technology (2018)
  • Complaint, In re Snapchat, FTC Docket No. C-4501
Week 9: Case Study: COVID-19 Vaccines

Vaccines are technology that can almost be considered miraculous. The eradication of the smallpox virus is one of the greatest technological and social achievements in history. Meanwhile, the COVID-19 vaccine was developed faster than any other in history, and works well. So what’s the problem? What’s different this time? Is it something about the science of the vaccine itself? How it was funded? How the press talks about it? Why are we unable to end the pandemic, even with vaccines?

Week 10: Presentations 1
  • TBD
Week 11: Presentations 2
  • TBD
Week 12: Presentations 3

First Draft Due for SAW papers

  • TBD
Week 13: Presentations 4
  • TBD