2022

We spend large parts of our days on screens. Often more than we intend to. Screen time has increased steadily for over a decade, even before the Covid-19 pandemic. This is no coincidence. Reports leaking from Silicon Valley revealed that tech companies used manipulative designs to extend users’ time on screens. The internet economy’s business model relies on extending user time online to collect more data and target more advertising at users.

This Article aims to answer why regulators did not intervene for years to protect users, especially children, from the harms of excessive screen time. It does so by developing law and technology theory to examine what influences the creation and breadth of windows of opportunity to regulate new technologies. Specifically, it identifies three factors that can obstruct the creation of meaningful windows of opportunity: (i) the invisibility of the technology; (ii) rapid entrenchment of norms and business interests; and (iii) social and institutional resistance to early intervention. The article also offers insight into how the occurrence of mega-historical events can reopen windows of opportunity by shaking up entrenched norms and practices.

The Article sheds light on how a window of opportunity to regulate addictive technologies failed to originally materialize, while re-opening later. First, the technology design that made screens addictive was invisible. As a result, users did not notice that their time online was gradually extended. By the time that public reports raised awareness of the technology addiction and overuse problem, both user norms and business interests were deeply engrained. Screens permeated practically every aspect of everyday lives. And, the primary business model of the internet economy relied on maximizing user time. Second, U.S. regulators generally resist early intervention, particularly of information technology and the Internet. Unsurprisingly, they opted for a wait-and-see approach in addressing technology overuse. Finally, the Article argues that the Covid-19 pandemic was a mega-historical event that created a window of opportunity to tackle the technology overuse problem. While the pandemic exacerbated the problem by significantly increasing screen time, it also made the technology visible. People realized how much time they spent on screens and how it affected them. This realization, coupled with increasing scientific evidence of the harms of technology overuse, created a window to regulate addictive technologies.

What does it mean for technology to disrupt law? Several possibilities come to mind. The first is that disruption refers to reshuffling some feature of the prevailing social order, destabilizing the balance of power and rights under prior law. Social impacts like these are instrumental to legal disruption—they often precipitate legal action to reverse or entrench the new status quo—but focusing on social impacts tells us little about the role or response of law itself.

The second possibility is disruption in the sense of challenging and changing substantive legal doctrine. This is perhaps the most popular and intuitive usage, and certainly a core concern for legal scholars. To define disruption this way, however, sweeps in too much. Change is an expected feature of a functional legal system rather than an indicator of anything remarkable. One might try to reserve the disruption label for particularly sudden changes or difficult doctrinal problems, but this solution invites further line-drawing questions. This framing of legal disruption is also incomplete: it begs for an account of why some doctrinal challenges prove more difficult than others.

This essay introduces a third possibility grounded in institutional analysis. By this account, legal disruption arises when technological change presents problems that are difficult to resolve through standard processes of making, enforcing, and updating the law. It arises fundamentally from the mismatch between the questions presented and the capabilities of existing legal institutions along the dimensions of authority, competence, and legitimacy. This account of disruption provides a schema for understanding how the difficulty of resolving techlaw problems extends beyond questions at the level of doctrine.

In this short comment, I raise two concerns regarding the implementation of Professor Krishnan’s model. The first is that the LODE model’s analogy to the discretionary interlocutory appeal is imperfect, and the imperfection is not merely technical, but rather involves the very heart of the reason for such interlocutory appeals: it is difficult to see how the LODE model will actually produce appellate rulings that could potentially shorten or terminate the underlying hearing. Instead, the LODE model seems likely only to create delay while the appellate court decides, based on an incomplete record, whether the rest of the immigration hearing will involve record development by the immigration judge.

The second concern is that the LODE model puts the appellate court into the position of having to decide (again, on an incomplete record) whether the noncitizen’s lawyer is inept or incompetent. Such a ruling could have far-reaching implications on any potential ineffective assistance of counsel claim brought by a noncitizen who loses at the hearing.

The University of Wisconsin’s James Willard Hurst was arguably the most significant legal historian in the United States. Hurst not only launched the so-called “new” legal history as an alternative to traditional constitutional narrative, but he also founded the interdisciplinary field of “law and society” more generally. And Hurst is most famous for some of his more general observations about the relationship between economic development and the growth of American law. As Lawrence Friedman put it, “[O]n the general question of the relationship between law and the economy, the pioneer work of J. Willard Hurst is still a fundamental starting point. . . .” Much of that work concerned the nineteenth century and law’s role in what Hurst talked about as “the release of creative energy.”

A few summers ago, I was playing in the yard with my kids. I noticed my 3-year-old son pinching the tops off the red lilies we had planted, which were just starting to bloom. I told him to stop. He immediately froze and blurted out “it was an accident!” I surveyed the scene. There were eight decapitated lilies in a row. Eight. I pressed him. “So, you are saying it was an accident, eight times?” He looked down, and then off into the horizon. The jig was up. He furrowed his brow—wondering how I could possibly know it had been intentional. I told him that we generally do not repeat the same movement, accidentally, eight times. He was mystified that I could have known his private thoughts. I told him that he was already developing the ability to read other people’s minds, and it would improve as he got older. He looked at me in awe, as if I had some superpower. But it’s one of the most basic things we humans do. This sort of mindreading—where we look beyond the actual words spoken, to discern someone’s true thoughts through their eye gaze, affect, expressions, character, demeanor, and any other cues—is an essential part of our social lives. By aggregating lots of information about other people’s mental states, past behavior, character (and unfair stereotypes), we decide whether they should be praised, condemned, or forgiven.

The public safety need for social distancing during the COVID-19 pandemic spurred the City of Chicago to begin reimagining its public right of way. One program of particular success was the City’s “Make Way for Dining” program initiated in the summer of 2020. This program created temporary outdoor “Café Streets” and pedestrianized roadways for dining and shopping to support a reeling restaurant industry due to forced closures and prohibitions on indoor dining. The City’s plan to help revive the local economy did come at a cost, however, as the City’s Transportation Commissioner, Gia Biagi, acknowledged that “street closings might require the [C]ity to compensate the consortium that leases Chicago parking meters for any taken out of service.”