A crashing Google car. An encrypted iPhone. These are more than recent technological controversies — they represent how technology collides with law, security, and public policy, with multiple trade-offs. They are just two examples of what will be an endless list of legal issues stemming from relentless innovation.
It’s said about innovation — considered a key advantage for the United States over global competitors — that engineers drive it, entrepreneurs profit from it, and lawyers impede it. But that’s off-base: Engineering and law should work together to advance the future. And because lawyers and engineers acquired their skills at a university somewhere, the logical entry point for change is education.
Engineering and law seem so different that many engineers and lawyers may be reluctant to learn from one another. The stereotype of "thinking like a lawyer" involves critical reasoning that is typically abstract and backward-looking (for precedents), confronting ambiguities and questions that seldom have "right" answers. It is traditionally cast as cautious and risk-averse. By contrast, "thinking like an engineer" is quantitative, adept at seeing interrelations, adaptive, and comfortable with trial and error. Of course, some important similarities and individuals span the gap. But by and large, the two professions have fundamentally different cultures and different ways of seeing the world.
Ten years ago, it would have been unthinkable to see courses that mix law-school and engineering students, M.B.A. and medical students. Now these types of courses are happening, and growing quickly. Linking these disciplines expands the thinking of all involved but requires building an understanding. We need engineers (creators) connecting with lawyers (risk managers) to provide a balance. But such teams will not function unless engineers learn something about risk management and lawyers learn something about innovation.
Law is the silent partner, starting with the constitutional protection of invention through the patent system, and continuing through regulatory frameworks and court decisions that have opened gates for new technological approaches — think of emission limits that forced auto manufacturers to develop better ways to reduce pollution.
But technology almost always gets in front of law and legal frameworks. The Internet emerged before appropriate regulatory strategies were developed. The same is true for most modern technologies: biotechnology, 3D printing of organs, artificial intelligence and inevitable aspects of intelligence augmentation, robotics, driverless cars, and the pervasiveness of the Internet of Things. Think of the trade-offs between cybersecurity and privacy, which we are just beginning to sort out. How could we have foreseen ISIS on YouTube, or the impact of social media in politics and political insurrections?
Lawyers should be exposed to the what’s coming and should be part of the discussions. One way to deal with the impact of emerging technologies is to bring ethical considerations into the conversation. At our institution, for example, a newly formed Center for Synthetic Biology has added an ethicist to its team. Lawyers could fulfill this role. Here, ex ante is better than ex post; that is, being upfront is good; catching up is not.
Engineers, on the other hand, should be exposed to history. The history of social regulation in the United States is one of response to unexpected tragedies growing out of new technologies, like the regulation of steamboats in the late 19th century. By 1852, when public pressure forced Congress to act, accidents had resulted in 7,000 deaths (equivalent to almost 100,000 if scaled to the current U.S. population). Similar lags have occurred in protections against unsafe food in the early 20th century, automobile safety in the 1960s and ’70s, and environmental protection in an era in which scientists warn of climate change. The role of law in protecting the public interest has always defined new goals for engineers.
Faculty-to-faculty workshops can help, with law faculty members explaining to engineers how lawyers think. Another option is courses involving students from both disciplines going through case studies of start-ups, from formation through private capitalization and into the navigation of typical operational and strategic hurdles. Other courses could help generate start-ups themselves.
The best teaching now fosters experiential learning. At our institution, a popular series of courses, called NUvention, brings together people from engineering, the social sciences, and the humanities, as well as professional schools like law, business, and medicine. Student teams tackle a real need or opportunity, design solutions, and pursue implementation, sometimes creating a start-up that lives beyond the course and outside of the university.
To be sure, even here we can succumb to stereotypes: When it is time to design, teams look at the engineering student; when it is time to write a patent application, to the law-school student. Never mind that the engineering student could be a computer-science major who never designed something physical in her life, or that not all law students have exposure to patent law. The challenge is to confront the stereotypes, reconfigure the cultural landscape, and prepare to collaborate across boundaries.
Other programs level the field even more. For example, a fellowship program run by Northwestern’s Innovation and New Ventures Office offers students firsthand experience in handling intellectual property. Some fellows will explore available technologies — unlicensed patents — and perhaps start ventures, while others will gain exposure to the legal and business aspects of commercializing a university technology.
These are local examples of a broader phenomenon that we view as essential to the innovation ecosystem of the future. For it to thrive, the engineering/law divide must be bridged by a more nuanced approach to educating lawyers and engineers, an approach that fosters inventive opportunities instead of hurdles, and at the same time focuses on the ways in which law can help shape coherent, collaborative innovation. That’s the kind of system we’re going to need in order to navigate a future that today we can hardly imagine.