Lawyers for a high tech age

Nation's Business, Feb, 1986 by Karen Berney

But if he puts on his scientist's hat, Mackler can quickly establish rapport with science-minded regulators and work through complex commercial and social issues. "The biotechnology lawyer who can grasp technological nuances has the advantage, because he understands the strengths and weaknesses of his arguments," Mackler says. Not surprisingly, industry is giving birth to a new breed of lawyers--the doctor of jurisprudence degree backed by one in advanced science.

Lack of statutes and legal precedents is not unique to biotechnology. It is a problem shared by all segments of the high tech community. Because quantum leaps forward are occurring so fast, "neither Congress nor the state legislatures have been able to keep up with the multitude of questions posed by the information age," says Peter Marx, a high tech attorney with Goulston & Storrs, Boston. As a result, most litigation is being resolved case by case.

Says Palo Alto's Nycum: "High tech lawyers are like the first skiers who lay tracks after a fresh snowfall." That may make lawyers happy, but it is not quite the ideal state of affairs for entrepreneurs, says Marx. First, the application of antiquated laws to technologies that defy legal boundaries could "frustrate a healthy, growing industry." And, Marx says, managers unable to figure out their firm' rights and liabilities may neglect market opportunities.

To date, however, it does not appear that legal uncertainty has caused technology to stagnate. And though there is a consensus that necessary legislative action lags technology by at least five years--it was not until 1984 that Congress amended copyright laws to extend protection to software--many regard the slow pace of lawmaking as good for society. "The law acts as a natural brake on technology, which is the way it should be," argues Randy Lowe, a telecommunications attorney with Surrey & Morse in Washington. "The alternative would be to have technology out of control."

Nevertheless, Marx says, it is clear that technology pioneers in the next century will find themselves strapped by a 19th century legal system, unless adjustments are made.

Promising technologies likely to wreak havoc with the law include artificial intelligence. Initially, AI will take the form of expert systems that will raise questions primarily in the liability area. The medical program that mistakenly prescribed a wrong drug: Did it commit a tort? asks Edwina Dissand, a computer scientist. Dissand, who last year began lecturing at Harvard law school on AI and legal reasoning, believes existing product liability law will be able to tease out the answer.

Eventually, the whole AI medical products field may be regulated. The Food and Drug Administration is studying medical expert systems to determine whether they qualify as medical instruments subject to FDA control. Similarly, the Securities and Exchange Commission is trying to determine how SEC rules apply to software that uses AI to recommend stock purchases.