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Governance of Emerging Technologies as a Wicked Problem

Posted by on Tuesday, December 22, 2020 in Articles, Volume 73, Volume 73, Number 6.

Gary E. Marchant | 73 Vand. L. Rev. 1861 (2020) |

Governance of emerging technologies . . . presents a conundrum. No single optimum solution exists, but rather a collection of second-best strategies intersect, coexist, and—in some ways—compete. This situation seems unsatisfactory until it is observed through the lens of the “wicked problem” framework. The wicked problem concept recognizes there is often no single, optimal solution to such a problem, but rather a mix of substandard solutions that must “satisfice.” That is the best that can be done with a wicked problem. This also may be the best solution for the governance-of-emerging-technologies problem.

This Article discusses the advantages of using the wicked problem framework to rethink the governance-of-emerging-technologies problem. Using this framework forces the recognition that there will not be a single, effective solution to this problem. The defining characteristics of a wicked problem—complexity, diversity, and uncertainty—make a perfect or even satisfactory solution to emerging technologies governance beyond reach. Rather, the best strategy will be to integrate a number of imperfect tools, recognizing and trying to compensate for their particular flaws, in pursuit of moving forward with highly beneficial technologies, while exercising responsibility and care to the extent feasible.

Part I expands the argument that emerging technologies are difficult to govern, and these management challenges align with the definition of a wicked problem. Part II surveys the various approaches that have been advocated for governing emerging technologies, describing not only their advantages but also their flaws and limitations. Finally, Part III elaborates on how the wicked problem concept provides a viable framework for moving forward with a governance system that is imperfect but suffices to achieve an acceptable outcome.

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Gary E. Marchant