Congress, the Courts, and New Technologies: A Response to Professor Solove
Orin S. Kerr
The George Washington University Law School
Fordham Law Review, Winter 2005
GWU Law School Public Law Research Paper No. 154
Which branch of government should take the leading role in the creation of criminal procedure rules when technology is in flux? In a recent article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Michigan Law Review 801-888 (2004), Professor Kerr argued that Congress has a relative institutional advantage over the courts in the creation of rules regulating law enforcement investigations that involve new technologies. Professor Daniel Solove disputes that institutional advantage in a symposium essay, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference. In this brief response to Solove, Professor Kerr contends that Solove's critique misses the mark in two ways. First, Solove improperly compares a descriptive account of statutory law protections with a normative account of constitutional law protections. Second, Solove fails to appreciate fully the institutional limitations of judicial rulemaking when technology is changing rapidly.
Number of Pages in PDF File: 15
Keywords: Fourth Amendment computers
JEL Classification: K14
Date posted: August 24, 2005
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