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Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. 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), or potentially catastrophic (artificial intelligence). 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 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 societal harms. Then, the Article presents a series of policy recommendations to begin addressing antisocial innovation’s risks. We also consider further opportunities for law to engage in ex ante regulation of some kinds of innovation, to prevent harms before they arise.

Library of Congress Subject Headings

Technological innovations--Social aspects, Patents--Economic aspects, Well being