Breyer and Alito on Law Changing to Meet New Technology

June 27th, 2011

In two opinions today–Brown v. EMA and Nicastro–Justice Breyer and Alito were hesitant about changing the law to meet new technologies.

From Breyer’s concurring opinion in judgment in  Nicastro:

I do not doubt that there have been many recent changes in commerce and communication, many of which are not anticipated by our precedents. But this case does not present any of those issues. So I think it unwise to an- nounce a rule of broad applicability without full considera- tion of the modern-day consequences.

I would not go further. Because the incident at issue in this case does not implicate modern concerns, and because the factual record leaves many open questions, this is an unsuitable vehicle for making broad pronouncements that refashion basic jurisdictional rules.