The rapid advances in science and medicine since 1950, and especially the advances in computer technology since 1980, have revolutionized the way society functions. It is widely recognized that our society is making a transition from the industrial manufacturing age to an information age. In contrast, the U. S.
Constitution and most of our common law was written when people lived in an agrarian economy prior to 1850. Law has been slow to adapt to the choices posed by technology. While I believe that knowledge, opportunities, and choices are inherently Good, there are the possibilities of (1) prohibiting or restricting use of new technologies for no good reason or (2) of misusing technology to harm people. Law that made sense in 1850, or even in 1950, can be inappropriate for today's problems and opportunities. While I am personally enthusiastic about new ideas and change, it is important to recognize the reason that law is slow to change. One of the basic principles of jurisprudence is stare dec isis: the old decision stands as a precedent for the present and future.
Such a principle gives society stable law, so that attorneys can predict the outcome of a case and advise their client. Therefore, judges are reluctant to make new law. In this essay, I briefly examine several situations in which new technology revolutionized society. In some of the situations, law was reactionary: law initially preserved the status quo. However, in a few situations (e. g.
, use of videotape recorders in the home), the U. S. Supreme Court quickly made the benefits of technology available to people. While this essay contains some citations to court cases in the USA, I provide neither a scholarly treatment nor legal advice, but only some observations and my personal opinions. Contraception In the years after the Civil War, there was a popular crusade in the USA against a variety of vices: pornography, abortion, contraception, prostitution, alcoholic beverages, etc. The result of this crusade was to attempt to legislate morality and compel everyone to obey one group's moral values.
Federal law in the USA (so-called Comstock Law, first passed in 1873) made it a crime to: (1) sell or give away any contraceptive or abortifacient, (2) send through the U. S. Mail any contraceptive or abortifacient, or (3) import any contraceptive or abortifacient. See U. S.
v. One Package, 86 F. 2 d 737, 739 (1936). 'Every article or thing designed or intended for the prevention of conception or procuring of abortion' was banned from the U. S. Mail by the Comstock Law, together with 'obscene, lewd or lascivious' publications.
See U. S. v. Chase, 135 U. S. 255, 257 (1890); Andrews v.
U. S. , 162 U. S. 420 (1896).
As a result, condoms were sold for prevention of sexually-transmitted disease (i. e. , 'prophylactics'), not as contraceptives. Some state statutes, notably in Connecticut, prohibited the distribution of information about contraception and also prohibited the distribution of contraceptive devices or drugs. The U. S.
Supreme Court in a series of three famous decisions, invalidated laws making contraception illegal. In Griswold v. Connecticut, 381 U. S.
479 (1965), the U. S. Supreme Court invalidated a Connecticut state law that prohibited use of contraceptives and also prohibited any person (including a physician or pharmacist) from giving advice about contraception. Because Griswold, who was director of a Planned Parenthood clinic and a professor at Yale Medical School, was giving married people information, instruction, and medical advice about contraception, this case is sometimes said to uphold the right of married people to have information about contraception.
In Eisen stadt v. Baird. 405 U. S. 438 (1972), the U. S.
Supreme Court invalidated a Massachusetts state law that prohibited the sale or gift of nonprescription contraceptives. Because Baird gave a can of spermicidal foam to an adult unmarried woman, this case upholds the right of unmarried adults to use contraceptives. In Carey v. Population Services International, 431 U. S.
678 (1977), the U. S. Supreme Court invalidated a New York state law that prohibited sale or distribution of contraceptive to people under the age of 16 years and also prohibited both advertising and display of contraceptives, even by pharmacists. Population Planning was a mail-order company in North Carolina that advertised contraceptives in New York state and sent contraceptives to residents of New York.
This case upholds the right of minors to purchase contraceptives. While I admire these three U. S. Supreme Court opinions, the obvious questions is 'Why did the courts wait so long to invalidate these repressive, medieval laws?' The best answer that I can suggest is that all forms of contraception became more acceptable to society in the USA, after oral contraceptives became available by prescription in the mid-1960's. The immediate popularity of these birth control pills quickly changed society's attitudes about contraception. By the late 1970's, condoms and spermicides were displayed in aisles of supermarkets and drug stores in USA, as an unremarkable product marketed to consumers.
Earlier, one had to ask a pharmacist for condoms and spermicides, since such products were not openly displayed on store shelves. Most adolescents were too embarrassed to ask a pharmacist, since asking would be an admission to an adult authority-figure that they were engaging in taboo premarital intercourse. One of the pieces of the Comstock Law was declared unconstitutional by the U. S. Supreme Court 110 years after the law was first passed. Bolger v.
Youngs Drug, 463 U. S. 60 (1983) invalidated a U. S. statute that prohibited mailing of unsolicited advertisements for contraceptives. Drugs, articles, and things used for abortions can neither be mailed in the U.
S. A. nor imported into the U. S. A. , according to 18 U.
S. C. SSSS 1305, 1461, 1462, so parts of the Comstock Law are still on the books in 1997. However, in 1971, the U. S. Congress did remove the prohibitions on contraceptives from these three statutes.
Law takes hundreds of years to fully evolve. Modern technology evolves on a scale of a few years. Therefore, law is unlikely to be an effective way to guide society in a reasonable and fair use of technology. Therefore, society (both businesses and individual people) will need to turn to technology for protection from technological innovation, since law is too slow to respond. This may seem paradoxical, but there are examples above (e. g.
, encryption defeating wiretapping). The problem is not only that most attorneys, judges, legislators, managers (indeed: the general population) are ignorant of science and technology. There seems to be something deep in most people that makes them afraid of new ideas and new opportunities. This fear and inability of managers is satirized effectively in the comic strip Dilbert, but the problem is real.
Most attorneys are extremely adverse to taking risks. The study and practice of law considers disputes between two parties. Often one party to the dispute has engaged in awful behavior: intentionally causing harm to another person, fraud, coercion, duress, threats, exploitation, alteration or destruction of evidence, 'forgetting' unfavorable facts, ... A lawyer learns to structure advice so that, in the future, when the other party has behaved badly, the client will be in the best possible position to seek protection from a court, perhaps by enforcement of a written contract or estoppel. This cautious attitude of attorneys can pose problems to engineers and entrepreneurs who are excited about new ideas (such as marketing a new product), or clients who want to do something unconventional, where legal protections are uncertain. Furthermore, most people, including most attorneys, don't like to do creative thinking, because they are afraid of making a mistake or afraid of failing to find a good solution.
It is a lot easier to say 'NO!' than to design a way to accomplish an unusual or unconventional goal.