Ready or Not: How Congressional Dysfunction and Loper Bright Enterprises v. Raimondo will Shift U.S. Regulation of Emerging Technologies to the Federal Bench

This Article is the first in legal academic literature to consider how the power shift generated by Congressional dysfunction and the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo will affect emerging technology law. Power is moving toward the judicial branch of government— and away from the legislative and executive branches. As a result, federal courts will now take a leading role in the evolution of emerging technology law in the United States. Unfortunately, the federal judiciary is not prepared for this new era. Drawing from the information processing theory, this Article explains why federal judges will be deciding complex and far-reaching cases without a deep understanding of the technologies underlying those cases. An overworked judiciary could create contradictory rulings, while the cost of compliance will increase and may lead to a wealth bias in favor of large technology companies. This situation will upset the delicate policy goal of protecting consumers while promoting innovation. But the solutions to these problems also lie in the judicial branch. This Article proposes the creation of a specialized “Tech Court” that would increase uniformity and predictability, promote judicial efficiency, and prevent forum shopping. The Article also proposes specific initiatives for improved judicial education and the installation of technology advisers in judicial chambers. In the end, this Article is a call to action: The federal judiciary must get prepared to lead in the post-Chevron era.