July 1998

There are no theologians on the United States Supreme Court.

There are no medical doctors, no undertakers, and no gerontologists on the U.S. Supreme Court. Neither are there any pediatricians, nor any marital experts, nor any pharmacologists.

Yet the august body in Washington, D.C., has no qualms about ruling on such philosophically deep issues as separation of Church and State, the rights of Dr. Kervorkian to quicken the death process, and various matters such as abortion, child pornography, and divorce. It would appear that judges do not need to be educated or certified in a particular field of study to make important decisions and legal statements in that field. Judges are supposed to rule on the basis of law and principle, not on the minute details and technicalities of science, religion, or philosophy. Therefore, technical expertise and university training in advanced technology are not prerequisites for judges to participate in the process of government.

Until now.

According to a three-judge federal appeals panel, ruling against Judge Thomas Jackson on the matter of the Microsoft web-browser case, judges should not make rulings on cases involving technology, because they have "limited competence" in such matters. "Limited" competence? Since when does a judge have to show "unlimited" competence in any area? By implication, then, are all judges required to be trained in computer technology in order to qualify to make court rulings about the legality of certain business practices? Must a judge become both a theologian and a licensed medical doctor in order to express a legal opinion on the subject of abortion? They indeed must do so, if one follows the backwards logic of this panel of judges to its inexorable conclusion.

What this panel has shown by its decision is that there is a subtle, assumed hierarchy of knowledge in today's society. At the bottom of the list, requiring the least intelligence and insight -- according to this ruling -- are the issues relating to religion, privacy, and medicine. Judges make rulings about these apparently "simple" subjects every month, so the judicial panel would conclude that there is no particular need for intelligence and competence to have a valid legal opinion in these areas. Above that level lies the murky world of business law and applied economics, where judges seem to have a valid opinion only sometimes. More often they prefer to remain silent, fearful of rendering a poor decision that sets a bad precedent.

But at the very pinnacle of societal wisdom, apparently, resides the world of computers and technology. Judges who are permitted to boldly speak out on supposedly "simple" issues affecting our privacy and our own bodies must suddenly gag themselves if a case involving a technology company comes up for review. Rendered speechless and incompetent, according to this three-judge panel, they must yield right-of-way on the legal information superhighway to big-business monopolists like Microsoft. Hiding behind their cleverly-devised false mantle of technological wisdom, Microsoft is being handed the role of techno-clergy over society by the blatant abdication of the courts. The false humility of these judges when computers are involved is curious, considering their readiness to pontificate on difficult matters such as abortion, pornography, and religion.

This form of so-called "judicial restraint" allows anyone who describes their position with such buzzwords as technology, innovation, and progress to be given carte-blanche to take everyone to the cleaners. Meanwhile, any judge who desires to become well-informed on the pertinent details of a technology-oriented case (such as via the special master process) is chided for poking his or her nose where it does not belong. The assumption here is that merely computerizing an issue raises it to a level beyond both the right and the ability of government to regulate.

Most recent revision: August 6, 1998
Copyright © 1998, Tom Nadeau
All Rights Reserved.