Courts, technology, and the boundaries of expertise

Abstract

Contemporary US jurisprudence is confronted with a constellation of issues that, while frequently masked as purely technical in nature, concern fundamental themes such as privacy and freedom of expression. Future court decisions will require an increased recognition of the ethical and social claims presented within technical contexts. This article is a study of comparative motion. On the one hand, there is the realm of technology where change is expected and unceasing. On the other hand, there is the law-embodying a tradition of rules and a methodology of interpretation which alters only slowly. The speed with which technology operates upon society is certainly a partial explanation for its clash with the more measured process of law, but it is not the only reason. The rapid generation of new knowledge is itself a force that challenges the stability of professions and philosophies, shifting claims of expertise among multiple contenders, sometimes with little warning. The power of expertise is not restricted to human beings. Rather than being situated solely within human agency, technology's "expert" ability to influence the decisions of courts is derived from its own character, is concerned with its own ends, and transmits values and purposes that are not necessarily consistent with human values or purposes.