Major Technological Questions: The Example of Powered Flight
(Coauthored with John F. Duffy)
As discussed in a prior post, the core argument in our recently published article “Major Technological Questions” is that courts and agencies should hesitate to interpret ambiguous pre-existing legal authority as resolving legal questions newly raised by major technological developments. As we noted in that earlier post, we draw an explicit analogy to the modern major questions doctrine. Nonetheless, major technological questions differ from the large scale economic and social issues that currently trigger the major questions doctrine. Furthermore, major technological questions have applications not only in judicial interpretations of old statutes, but also in judicial application of pre-existing common law. In this post, we provide an excellent historical example of how courts should approach major technological questions in the application of pre-existing common law and in the formulation of new common law.
Our example involves a major technological question arising during the early legal history of powered flight. (Appropriately enough, one of us was writing and editing this post in a comfy chair 36,000 feet over the North Atlantic—something that would have been nearly unimaginable a century ago.) When the Wright brothers made their historic flight in 1903, they avoided legal complications because their tests occurred on unowned beaches or personally owned land. But as aviation developed, a key legal issue soon emerged: whether airplanes flying over private land constituted trespass.
At the center of this issue was the old common law maxim: “Cujus est solum, ejus est usque ad cœlum et ad infernos”—translated as, “To whomsoever the soil belongs, he owns also to the sky and to the depths.” This phrase, originating from Roman legal traditions and later embedded into English common law by preeminent legal authorities like Lord Coke and William Blackstone, seemed to suggest t
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