Congress, the Courts, and New Technologies: A Response to Professor Solove

Abstract

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.

Keywords: Fourth Amendment computers

JEL Classification: K14