Issues of scale—the relationship between the amount of an activity and its associated costs and benefits—permeate discussions around law and technologies. Indeed, it’s not much of an exaggeration to say that scale is the reason for most technology regulation.
But it’s not always clear how lawmakers and judges conceptualize “scale” when approaching questions around automated technologies. Scale is often used intuitively, just to mean “more.” But scale is not always just about more—scale can introduce new harms and benefits along different dimensions, not simply costs or efficiencies of greater magnitude.
In this Article, we argue for a more sustained interrogation of the role of scale in law, one that is more sensitive to the distinction between what we describe as “scale is more” and “scale is different.” When lawmakers and judges fail to properly categorize the role of scale in a particular context, they risk ignoring or misidentifying harms, misdiagnosing the causes of those harms, and potentially focusing on the wrong policy tools, and even the wrong actors, in proposing ways to address those harms.
