The Promise and Limits of Lawfulness: Inequality, Law, and the Techlash

In the wake of Facebook’s Cambridge Analytica scandal, the technology industry has been the focus of increased public distrust, civil and worker activism, and regulatory scrutiny — a collective curdling of goodwill referred to as the “techlash.” No longer does the tech industry stand for the propositions of inclusive capitalism and technological progress that benefit all. In near parallel, ferment is once again abroad in the law (to paraphrase Llewellyn). Both popular and scholarly commentators challenge the incapacity of law and our legal institutions to protect against the worst abuses of our time. These critiques emphasize the limits of (anti-democratic) progressive political strategies that overly rely on appeals to existing legal institutions, rather than strategies to democratically re-invigorate those institutions. What does it mean to respond to the crisis of legitimacy in tech with appeals to legality at a time when law is undergoing its own growing legitimacy crisis? This Essay explores the implications for this twin moment of reckoning, first by troubling the distinction between “tech ethics” and law/regulation as responses to the techlash, before rescuing what a turn to law may offer those seeking to democratize the digital economy. In response to skepticism about the recent rise of “tech ethics,” many critics have called for legal and regulatory reform instead. In contrast with the “ethics response,” this “lawfulness response” is considered more capable of disciplining the excesses of the technology industry. Yet this view misunderstands the indeterminacy and the possibility of both ethical commitment and law. In advancing this argument, the Essay focuses on two misunderstandings common among proponents of the lawfulness response. First, they misdiagnose the harms of the techlash as arising from law’s absence. In fact, law mediates the institutions that it enacts, the productive activities it encases, and the modes and myths of production it upholds and legitimates. Second, this distinction between law’s absence and presence implies that once law’s presence has been achieved, the problems of the techlash will be addressed. This concedes the legitimacy of the very legal regimes currently at issue in law’s own legitimacy crisis, and those that have presided over the techlash. The twin moment of reckoning in tech and law thus poses a challenge to those looking to address technology’s problems with promises of lawfulness. Nevertheless, addressing the harms caused by technology production will by necessity require engaging with law. In fact, technology reformers can helpfully recast the problems of the techlash as problems of law’s growing legitimacy crisis. Doing so faithfully will require re-invigorating the democratic possibility of law: its capacity to channel and enact democratic will rather than as a means to circumventing that will. Waldron notes, “a lot of what makes law worthwhile, […] is that it commits us to a certain method of arguing about the exercise of public power” (Waldron in Burley, 2004). Situating the problems of the techlash on legal terrain gives us recourse to this method, both to contend with the problems of the digital economy and to develop democratically accountable legal institutions that respond to them. Addressing the techlash will require re-politicizing “critical questions of self-governance” that have been lost as we cede democratic control of law (Pistor 2019). Achieving more democratic technology thus necessitates reform efforts that deepen democratic accountability across our legal mechanisms writ large.