What lies outside the law of the horse?

Hello, dear reader, and welcome to another issue of AI, Law, and Otter Things! It feels like it has been a while since I've posted a substantive essay in this newsletter. I guess that is a bit due to my awkward position in terms of works in progress: I have some pieces under review (i.e. stuff I cannot really share yet), my book is in progress (and I will share more on that soon), and I haven't really had time to write down more of my still-immature thought on digital sovereignty.

So, today I will share some reflections on a classic question of law and technology scholarship: what is it that we are studying, after all? After that, you will find the usual: a few recommendations of stuff you might like to read, some academic opportunities, and a cute otter. Hope you enjoy!

The law of the jockey

A spectre haunts technology law scholarship—the spectre of the horse. Ever since Frank Easterbrook made the case that an autonomous field of cyberlaw would be ‘doomed to be shallow and miss unifying principles’, researchers have tried to come up with some way to justify the whole idea that 'law and technology' should be understood as a subject of legal scholarship. Some, like Lawrence Lessig, have tried to identify how the study of phenomena related to the law could cast light over general aspects of the legal enterprise. Other, like Michael Guihot, have proposed that technology law is better understood as a broad tent where scholars with disparate concerns can find common ground to deal with unknown phenomena, a tent that (if we go by Ira Steven Nathenson) might become unneccessary at some point. This existential angst can be found, in some way or another, in most theoretical discussions about how the law should approach technology. Yet, I am not sure it is the most fruitful approach to a disciplinary definition nowadays.

In that view, I am not necessarily alone. Silvia de Conca, for one, has raised the alarm that, by importing this theoretical framing from US scholarship, European lawyers overlook a fundamental tension between approaching technology from a horizontal, regulatory perspective or from the vertical perspective of national and sectoral frameworks. Ultimately, I am not persuaded by her point that the way out of this conundrum is through rigourous methodology, given my critiques of a 'scientific' outlook towards law and of some of the methods expected to furnish rigour. Still, her article not only identifies this EU-specific factor that is not covered by US-centric methods talk, but hints at a deeper question: nowadays, what is not technology law?

To frame my answer to this question, I will step briefly away from horses and lawyers and go into the realm of football. One of the most successful football managers ever was Arrigo Sacchi, who won many national and international titles with Milan and got a silver medal for Italy in the 1994 World Cup.^[1] Unlike many other successful managers, Sacchi never had a career as a professional footballer. Why does that matter? Because, when asked about this gap in his CV, his answer was something we should keep in mind when approaching technology as lawyers: 'I never realized that in order to become a jockey you should have been a horse first'. Taking it back to our context, I would suggest that we can only speak of 'law and technology' as an autonomous approach to the law if, in our technological society, there is a way of speaking of technology that is not covered by that label. Otherwise, Nathenson's prophecy has come to pass and we are all cyberlawyers now.

After all, it is not difficult nowadays to find examples of legal research questions that now have a technological twist. My criminal law colleagues might have to deal with questions of liability for the use of automated systems, while evidence law scholars are now called to wonder about things such as digital chains of custody. In many such cases, we are talking about legal questions that were complicated way before some pesky new technology changed the underlying assumptions. So, the domain experts do not necessarily have the time or the inclination to become experts on the technological side of things in addition to everything. Yet, they cannot rely on the ostrich strategy of pretending those technologies simply do not matter. What is to be done?

The bad news here is that some extent of familiarization with technical questions is necessary, for a few reasons. Even if you want to outsource the engagement with the technology to consultants and other expert nerds, there is a need to establish a common vocabulary, as seen by the constant difficulties programmers face when dealing with ‘technical’ branches of the law such as privacy and cybersecurity. In addition, discussions about technology are all-too-often captured by ungrounded claims about technological capabilities. For example, debates about emerging technologies such as artificial intelligence, digital twins, and quantum are often captured by a considerable amount of over-enthusiastic extrapolation from current development trends.

On slightly better news, there is a difference between the knowledge needed to become an expert in those technologies and the literacy that is needed to start fruitful legal inquiry. In fact, technology lawyers often produce handy explainers of technologies, including those seen as 'emerging' technologies (such as quantum information technologies), current ones (such as machine learning) and more established technologies (such as encryption). Beyond these academic materials, aimed at probing open research questions for law and tech, one might rely on materials for general literacy.^[2]

These materials allow legal scholars to understand the basics of technology, which should allow them to identify 'low-hanging fruits': things that are obviously problematic, or look enough like known technological challenges that one might need to dig deeper at that. Furthermore, learning about the basics also helps us to shape our known unknowns: that is, they help us find out what we don't know about and might need to consult experts to ascertain. Therefore, some degree of literacy can help us understand whether, for a given technical question, technology will be a focal point for framing our questions of interest. Or, alternatively, whether technological details are important contour conditions of any solution to the legal problem at hand, but not particularly to its framing.

In my understanding, what distinguishes 'law and technology' experts from other kinds of legal scholars is not the mere fact that they have to deal with technical factors in their work. After all, such a definition would make most of us technology lawyers, and Nathenson's prophecy would have come to pass already. If the distinction is to retain any meaning, one must view law and technology as a question of framing. A law and technology expert is someone who frames and approaches legal questions in a way that centres technology and what it makes distinctive in social relations. Other scholars approach technology as a fact of life but do not make it central to their studies, for example because they are primarily interested in concepts such as legitimacy and accountability.

From that perspective, I do not consider myself a law and technology scholar. Although my background as a data scientist allowed me to engage with technological specifics and see their relevance for some legal questions, those questions are not the ones that make my heart beat faster. In particular, I have little enthusiasm for the formula find a new technology -> unpack its ethical and social implications -> propose regulatory interventions or interpretive change that has become standard practice in domain. Although this approach ensures that the scholarly community can soon have 'explainers' of whatever new technology that emerges, and it allows tech geeks to dig deep into things that genuinely interest them, it is not something that scratches my personal itches.

That is not, of course, the only way to do law and technology; in fact, Przemek Palka and Bartosz Brozek have an interesting book chapter on 'How Not to Get Bored' with tech law, which is much more interesting than anything I could write on the subject. Yet, technology appears more and more as a part of the environment in which the questions that interest me emerge, rather than a focal interest. But how can one study technology without making it the star of one's paper? That is a question for future posts! In the meantime, I would love to hear your thoughts on this demarcation issue and how you cope with it on your own research.

Recommendations

Claudia Aradau and Georgios Glouftsios, ‘Making Security Public: Scandals, Controversies, Struggles’ [2026] Security Dialogue xhaf020.

Antoine Bailleux, ‘Science in the Courtroom EU Courts Wisely Steer Clear of Judicial Passivism Joined Cases C-71/23 P and C-82/23 P, France and Commission/CWS Powder Coatings and Others [2025] ECLI:EU:C:2025:601’ [2026] European Journal of Risk Regulation 1.

Benjamin Farrand, Geopolitical Union: Europe’s Attempt to Take Back Control of Technology Regulation (Cambridge University Press 2026).

Signe Sophus Lai, Sofie Flensburg and Kristian Sick, ‘Currents of Control: Ownership Evolutions in the Submarine Data Cable Industry’ [2026] Media, Culture & Society 01634437251410061.

Jo Lindsay Walton, ‘Machine Learning in Contemporary Science Fiction’ (2024) 54 SFRA Review.

Opportunities

Disclaimer: as usual, I am gathering these links purely for convenience and because I think they might be of interest to readers of this newsletter. Unless I explicitly say otherwise, I am not involved with any of the selection processes indicated below.

This year, the Utrecht Summer School on standardization will feature a course on Global Power and Technology. The course will take place from 20 to 24 July, featuring academic and industry experts to cover topics such as AI, quantum, cybersecurity, and the role of China in ICT standardization. If you are not joining us in Lisbon, you should definitely go to Utrecht! Applications are due by 1 June.

My colleagues from the  Interdisciplinary Centre for Security, Reliability and Trust (SnT) at the University of Luxembourg are looking for a Research Scientist in Sociotechnical and Human Aspects in Cybersecurity. This is a permanent position that requires fluency in English and either French or German. Apply at your earliest conveninence.

Tilburg Law School is looking for an Assistant professor in Technology Regulation with a focus on Energy Law and Policy. Applications are due by 15 March.

The European Standardization Organizations have an open call for interest for a Member of Advisory Steering Committee for project to Reinforce the European Standardization System through Education. Apply by 20 March.

The Centre for Commercial Law Studies at Queen Mary University of London is looking for a Post-graduate Researcher in Cloud Computing Law. Applications are due by 23 March.

The University of Amsterdam is hiring Two Postdoctoral Researchers on AI & Politics. Applications are due by 23 March.

From 6 to 10 July, the University of Pisa will host a Summer School on Law and Geopolitics. Applications are due by 31 March.

The Socialists and Democrats at the European Parliament have released a Call for expressions of interest for experts in various domains of interest. Selected experts will be added to a reserve list for potential contracts, which will remain valid until February 2031.

And now, the otter

Thanks for your attention! Do not hesitate to hit “reply” to this email or contact me elsewhere to discuss some topic I raise in the newsletter. Likewise, let me know if there is a job opening, event, or publication that might be of interest to me or to the readers of this newsletter. Hope to see you next time!