Second of two parts examining the difficulties common law courts face when rapidly advancing technologies differ so greatly from those at issue in case law that the most seemingly on-point precedent doesn’t hold up.
Last week, the first part of this column explained that certain technologies have advanced so rapidly that sometimes the process common law courts usually undertake, of analogizing to the closest precedent, does not necessarily work. That is because certain innovations are so disruptive that the closest precedent is only deceptively analogous—a full understanding of the technology’s nuances would reveal that it is more fundamentally unlike that which came before it than the simple analogy accounts for. Some judges have addressed that tension head on, like the U.S. Court of Appeals for the Ninth Circuit’s Chief Judge Alex Kozinski, who unsuccessfully urged adoption of a detailed set of protocols to guide government searches of voluminous electronic data in 2010′s United States v. Comprehensive Drug Testing.
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