Judicial Competence

Abstract

Commenting on the close relationship between technological and legal developments, Grant Gilmore once wrote: "The reason for the dramatic change in English law during the second half of the eighteenth century is not far to seek. We know it as the industrial revolution."' His insight, although directed to trends in commercial law in eighteenth century England, is not limited to a particular legal discipline or a single historical epoch. Indeed, the many new activities and products stemming from recent technological innovations are provoking changes in American law comparable in magnitude to those experienced during the industrial revolution. When legal rules change because of new technologies, they are usually responding to the effects of those technologies, not the technical developments themselves. For example, the invention of electronic funds transfer networks has brought substantial changes in the regulation of banking, somewhat akin to the developments in negotiable instrument and sale of goods law discussed by Gilmore in connection with the passage quoted above.2 Such changes in the law require of the courts only an appreciation of a new, perhaps more rapid, means of transacting business or communicating; an understanding of the underlying technology is not necessary. There are, however, a number of important areas where changes in the law require that judges have some appreciation of the actual technology involved. One such area is the regulation of the nuclear power industry. Here the new technology has created a class of problems fundamentally different from those posed by the regulation of conventional utilities. Accordingly, courts must devote some attention to nuclear power technology to deal effectively with these problems.3 Another ex-