Faculty Director Gary Marchant and Faculty Fellow Yvonne Stevens have published a law review article that proposes a new model for governing emerging technologies that is based on the concept of resilience.
Current efforts to govern emerging technologies like synthetic biology, artificial intelligence, and nanotechnology involve a mix of ex ante strategies such as risk analysis and precaution. But given the inherent and massive uncertainties about the risks posed by emerging technologies, regulatory restrictions that impede innovation are often adopted based on very speculative fears that may never manifest. And when things do go wrong, they often are for unanticipated risks that society is not prepared to deal with.
Marchant and Stevens propose a new model that gives greater weight to ex post application of resilience. Anticipatory resilience means putting in place a variety of measures that can help minimize any harm that may be caused by emerging technologies, while avoiding unwarranted preemptive restrictions on the technologies. The authors propose two types of resilience measures for emerging technologies:
- Procedural resilience measures put in place processes for the early detection and rapid response to any harms caused by the technology.
- Substantive resilience measures involve a variety of tools that can help minimize harm if it occurs, such as back-up regulatory programs that would kick in, financial assurance requirements, stockpiling harm mitigation supplies, and technology kill switches.
While these ex post resilience measures cannot and should not replace ex ante risk analysis and precaution entirely, they can be used to reduce the pressure and reliance on these ex ante methods that often face insurmountable challenges in accurately predicting the impact of emerging technologies.
Marchant and Stevens’ article was published in a symposium issue of the UC Davis Law Review and is available for free here: Resilience: A New Tool in the Risk Governance Toolbox for Emerging Technologies. Marchant’s panel discussion at that symposium can be viewed here (Marchart’s talk begins at 14:00). The same issue of the journal features a number of other interesting articles on the governance of various emerging technologies.
A special tip of the hat to professor Anupam Chander – formerly of ASU, now at UC Davis – who chaired the symposium and authored a superb and highly recommended introduction to the special issue entitled Future-Proofing Law.