The George Washington University Law Review has now published "Major Technological Questions," a contribution by John Duffy and myself to a symposium on Legally Disruptive Emerging Technologies. (You can find all of the symposium contributions here.) In this post, John and I will provide a brief overview of our argument. We'll elaborate more in several subsequent posts.
Our core argument is that courts and agencies should hesitate to interpret ambiguous pre-existing legal authority as resolving legal questions newly raised by major technological developments. As the title suggests, we draw an analogy to the "major questions doctrine." That doctrine can be understood as holding that an administrative agency seeking to resolve major questions of vast or political significance must have a fairly explicit authorization in pre-existing statutes that supports the agency's power to address such "major questions." If such an explicit authorization is absent, the pre-existing statutes are interpreted so that the "major questions" are viewed as outside the ambit of the agency's statutory authorization.
Our approach to major technological questions is analogous but not identical. We argue that, when significant new technologies and with them major new legal questions arise, all legal actors (both agencies and courts) should typically view those questions as falling outside the ambit of pre-existing legal materials, including not only statutes but also judicially created common-law doctrines. The consequences of such a view varies. For agencies, the consequence is likely a lack of statutory authorization and thus less power (just as with the major questions doctrine). For courts, the consequence of viewing pre-existing precedents as not addressing new technological issues may well be to give the courts more power because the courts would then not be constrained by precedent.
