Haste Makes Waste: Congress and the Common Law in Cyberspace

62 Pages Posted: 24 Jul 2002

See all articles by Suzanna Sherry

Suzanna Sherry

Vanderbilt University - Law School

Abstract

Every time a new technology creates legal problems, we face in a particular context the general question of relative institutional competence. Do we turn first to the judiciary, allowing time for a gradual solution derived from common law methods, or do we look instead to the federal legislature for an instant global solution? This Article endorses the judicial approach, suggesting that Congress is particularly likely to err when rapidly changing technology creates a perceived crisis, and when the strongest reasons for not legislating are abstract and inchoate. The Article examines three legal questions raised by computer technology, two the subject of recently enacted federal statutes and the third dealt with solely by the judiciary. The author concludes that both of the factors that maximize the potential for legislative error are present in most cyberlaw questions, and that the judiciary has therefore been more successful than Congress at responding to the legal problems arising from this new technology.

Suggested Citation

Sherry, Suzanna, Haste Makes Waste: Congress and the Common Law in Cyberspace. Vanderbilt Law Review, Vol. 55, March 2002. Available at SSRN: https://ssrn.com/abstract=319683 or http://dx.doi.org/10.2139/ssrn.319683

Suzanna Sherry (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-0993 (Phone)

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