Steve Calandrillo and Nolan Kobuke Anderson, Terrified by Technology: How Systemic Bias Distorts U.S. Legal and Regulatory Responses to Emerging Technology, 2022 U. Ill. L. Rev. 597 (2022), https://digitalcommons.law.uw.edu/faculty-articles/664
cognitive bias, risk perception, thalidomide, Boeing 737 MAX, child restraint regulations, school shooting, COVID-19, precautionary principle, drones, autonomous vehicles, artificial intelligence, cost-benefit analysis, agencies, behavioral economics, law and economics
Americans are becoming increasingly aware of the systemic biases we possess and how those biases preclude us from collectively living out the true meaning of our national creed. But to fully understand systemic bias we must acknowledge that it is pervasive and extends beyond the contexts of race, privilege, and economic status. Understanding all forms of systemic bias helps us to better understand ourselves and our shortcomings. At first glance, a human bias against emerging technology caused by systemic risk misperception might seem uninteresting or unimportant. But this Article demonstrates how the presence of systemic bias anywhere, even in an area as unexpected as technology regulation, creates inefficiencies and inequalities that exact heavy costs in the form of human lives, standards of living, and lost economic opportunities. The decision to regulate or implement an emerging technology, like any other complex decision, naturally involves some form of cost-benefit or risk-reward analysis. However, in the context of emerging technology, that analysis is biased by systemic risk misperception. Immutable characteristics existing in emerging technology combine with interrelated characteristics in human decisionmakers and regulators to inflate perceptions of risks and depress perceptions of benefits. This artificial shifting of cost-benefit curves results in suboptimal legislative and regulatory responses to emerging technology, and ultimately, in the loss of American lives.