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Abstract: Emerging technologies such as nanotechnology and artificial intelligence develop very quickly, creating challenges for governance to keep pace, a problem described as the "pacing problem." Our traditional institutions of government oversights--Congress, regulatory agencies and the courts--face a series of structural and procedural impediments that prevent them from keeping pace with rapidly evolving technologies. This results in two problems--some technologies are regulated by existing regulation that has become outdated, and other technologies have no regulation. Soft law is the most effective strategy for addressing the pacing problem. Soft law programs can be adopted and revised more quickly than government regulation, and both scholarly and empirical research demonstrates that the flexibility and agility of soft law can indeed provide an important advantage for addressing the pacing problem. But soft law also has its limitations, one of which is the frequent criticism that soft law measures do not permit as much stakeholder participation as government regulation, where public participation is mandated. Several recent soft law programs have attempted to increase stakeholder participation, which may improve the credibility of such programs, but at the cost of restricting the flexibility and agility benefits of soft law. Designers of soft law programs must therefore be aware of and address the trade-off between the agility and participation attributes of soft law, which will depend on the circumstances and specifics of the individual case.
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