Orin Kerr had a really good post yesterday on the Volokh Conspiracy about technology and law. Here’s an excerpt:
In contrast, I argue, the latest technologies are constantly in flux, and the social meaning of different technologies and their regulation can vary considerably over the years (and with some technologies, over a matter of months). As a result, prospective legislative rules rather than slowly-developing judicial rules are likely to prove more effective at regulating privacy in new technologies. In fact, I argue, past judicial efforts to try to determine the social meaning of different technologies often have become outdated quite quickly.
You can also apply Orin’s logic to antitrust litigation, because market interactions are also constantly in flux. Technological change also certainly plays into that dynamic; for example, by the time the US government had dragged IBM through years and years of antitrust prosecution in the early 1980s, IBM had lost the purported monopoly that they had created. You could also argue that some of that dynamic has happened in the Microsoft case as well.