Scholz on Indivisibilities in Technology Regulation

Lauren Henry Scholz (Florida State University – College of Law) has posted “Indivisibilities in Technology Regulation” on SSRN. Here is the abstract:

Lee Fennell’s “Slices and Lumps: Division and Aggregation in Law and Life” reveals the benefits of isolating configurations in legal analysis. A key characteristic of configurations — or “lumps” — whether found or created, is that they are indivisible. To say a lump is indivisible is not to say that it is literally impossible to divide, but rather “that it is considerably less valuable when divided, or that it is expensive (perhaps prohibitively so) to divide successfully.”

This Essay will extend Fennell’s approach to indivisibilities to the context of technology regulation. Fennell discusses at least two types of indivisibilities in the book. I will call these indivisibilities of fact and indivisibilities of law. Indivisibilities of fact are facts about the world that make it difficult to divide up a resource in ways other than predetermined lumps. Indivisibilities of law are outcomes at law that are relatively “all-or-nothing.” Indivisibilities of both types are at play in current issues in technology regulation.

With respect to indivisibilities of fact, this Essay will discuss the example of indivisibility of privacy regulation. Some argue that piecemeal, sector-specific privacy regulation is the same as no regulation at all due to realities of the technosocial environment. This comes down to a debate about the degree to which the level of consumer privacy-a fact about the world-is indivisible. With respect to indivisibilities of law, this Essay will discuss the example of consent in the law of adhesion contracts in the digital age. Whether there is consent is a binary distinction, with major implications at law. Some consumer advocates have argued that consent should be segmented into meaningful consent and less meaningful consent. But, perhaps, the concept of consent is indivisible. Whether or not consent can be understood as divisible-a characteristic of the law-has major implications for this area of law and policy.