Antisocial Innovation

Abstract

Innovation is a form of civic religion in the United States. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny vision of innovation as purely beneficial is mistaken. Some innovations, like the polio and Covid-19 vaccines, are unquestionably good for society. But many innovations are, on balance, neutral, and many more are simply bad for society (cigarette additives, worker surveillance, firearm bump stocks). Moreover, some neutral innovations transfer wealth from one group to another in ways that might be morally objectionable (pricing algorithms). This Article argues that a fuller conception of innovation’s costs and benefits counsels a radical reorientation of law and policy. It begins with a taxonomy of various kinds of antisocial innovation, cataloging and describing individual, environmental, competition, labor, privacy, and social harms. Then, the Article presents a series of policy recommendations to begin addressing antisocial innovation’s risks. We propose that intellectual property and antitrust laws abandon their presumptions that all innovation is socially valuable in favor of a more balanced view of the need for incentives and protection. We also consider further opportunities for law to engage in ex ante regulation of some kinds of innovation, in order to prevent harms before they arise.