Law Proofing the Future

TL;DR

The paper argues that instead of trying to 'future proof' laws against emerging technologies, we should rely on the generality and stability of common law to adapt naturally over time, avoiding premature regulation.

Contribution

It challenges the notion of proactive legislation for emerging tech, advocating for legal restraint and reliance on existing common law principles to govern technological change.

Findings

Historical legal regimes adapt to technological change without new laws.

Early regulation can entrench incumbents and hinder innovation.

Common law's generality and stability are key to future-proof governance.

Abstract

Gemini said Lawmakers today face continuous calls to "future proof" the legal system against generative artificial intelligence, algorithmic decision-making, targeted advertising, and all manner of emerging technologies. This Article takes a contrarian stance: it is not the law that needs bolstering for the future, but the future that needs protection from the law. From the printing press and the elevator to ChatGPT and online deepfakes, the recurring historical pattern is familiar. Technological breakthroughs provoke wonder, then fear, then legislation. The resulting legal regimes entrench incumbents, suppress experimentation, and displace long-standing legal principles with bespoke but brittle rules. Drawing from history, economics, political science, and legal theory, this Article argues that the most powerful tools for governing technological change--the general-purpose tools of the common law--are in fact already on the books, long predating the technologies they are now called upon to govern, and ready also for whatever the future holds in store. Rather than proposing any new statute or regulatory initiative, this Article offers something far rarer, a defense of doing less. It shows how the law's virtues--generality, stability, and adaptability--are best preserved not through prophylactic regulation, but through accretional judicial decision-making. The epistemic limits that make technological forecasting so unreliable and the hidden costs of early legislative intervention, including biased governmental enforcement and regulatory capture, mean that however fast technology may move, the law must not chase it. The case for legal restraint is thus not a defense of the status quo, but a call to preserve the conditions of freedom and equal justice under which both law and technology can evolve.