This Article discusses a classic intersection of law, science, and technology. Just like common law courts adjusted the “mailbox rule” to cover fax machines, courts will have to adjust their existing approach to liability for harmful legal services, given the existence of new providers of legal services online. The result is a clash of cultures between one of America’s most conservative institutions—its common law courts—and some of its most aggressively forward looking ones—internet entrepreneurs.
If you do not believe that America’s courts are conservative by nature, consider Chief Justice Roberts’s comments on technology in his 2014 Year End Report on the Federal Judiciary. Chief Justice Roberts begins the report by mocking the hot technology of yesteryear: pneumatic tubes. He then notes that, by 1971, what was once shiny and new was grossly outdated. He uses this story to launch a defense of common law court technophobia, noting that “courts will often choose to be late to the harvest of American ingenuity.” But, to use modern parlance, Chief Justice Roberts thinks this is not a bug, but a feature! He states: “Courts are simply different in important respects when it comes to adopting technology, including information technology.” Given that Chief Justice Roberts is the titular head of the federal judiciary, his attitude towards technology and his celebration of its slow adoption tells you all you need to know about American courts and technology.