In the thick of emerging tech governance

A familiar lament runs through technology law scholarship: law is perceived as coming “too early or too late.” By the time legal frameworks catch up to a new technology, the technology has already moved on. Conversely, regulators act so early that the rules govern something that does not yet meaningfully exist. This "too early or too late" diagnosis has become a refrain in the governance of emerging technologies, from artificial intelligence to quantum computing to biotechnology. Whilst the diagnosis is not necessarily wrong, accepting it as the full story risks overlooking what law is actually doing in these spaces.

A law and political economy (LPE) perspective offers an account of law “in the thick” of technology production. Rather than treating law as a regulatory response to technological development (thus coming “too late or too early”), LPE invites us to ask how law actively participates in shaping which technologies get built, by whom, and on whose terms. Law does not merely govern technology pre-emptively or after the fact, but conditions what kinds of technological futures are possible, and what futures are foreclosed. 

This is fundamental for discussions on the governance of emerging technologies, where the stakes of legal design are often set before markets, standards, or technological applications have crystallised. Consider how export control regimes, patent systems, and public procurement frameworks are already configuring access and control over innovation ecosystems, infrastructure and supply chains for pre-commercial fields, such as quantum technologies, that have neither deployable use-cases nor markets. LPE asks how legal arrangements lock in particular distributions of knowledge, access and power. This perspective prompts reflection on what technological solutions and processes get legally enclosed, and most importantly who owns and gets to set the terms of use and exclude others from underlying knowledge. By the time a technology matures, such legal arrangements may be entrenched, their political origins obscured by the apparent neutrality of legal form.

LPE also provides an important complement to the currently dominant geopolitical framing of technology governance. Geopolitics and its cousin geoeconomics drive much of today's policy discourse around "strategic" technologies and tends to treat law as an instrument of state interests, to be deployed in competition for technological leadership. LPE does not deny that states pursue strategic interests through law, but it shows how legal arrangements in turn shape what those interests become and who can act on them.

LPE's analytical tools are sharpest when used to direct attention to concrete legal mechanisms, e.g. intellectual property regimes, export controls, standards, investment term sheets, public procurement, through which (geo)political and (geo)economic power is constituted and distributed, not merely regulated. LPE shows law as a constitutive force that shapes what interests emerge, and which actors are positioned to pursue them. LPE is not only for the critics to diagnose a “power” problem without actionable solutions. Identifying law as a site of power is also to identify it as a site of contestation. If legal arrangements actively configure technological trajectories, they can also be redesigned to open different ones. Law in this sense is both an instrument of and instrument to discipline power. This means asking not just who benefits from current legal frameworks, but what alternative arrangements might distribute access, participation, and benefit more broadly, and how those alternatives might be achieved through existing legal channels.