This blog is devoted to the tension created as traditional legal concepts are applied to new questions created by technolgy. AKA the problem of trying to fit a square peg in a round hole, to use an old cliche.
I recently ran across an article by a friend of mine, John Amabile and his partners at Parker Poe, Michael Birns and Todd Sprinkle entitled “Textualism Is The Law of the Land in Georgia: What To Do About it?” Here is a link to the article which appeared on December 7, 2017 in jdsupra. The article poses this exact question within the confines of a series of decisions by the Georgia Supreme Court.
“textualism requires the court to apply the plain meaning of the statutory text at the time the statute was originally“
John and his team report that the Georgia Supreme Court has firmly embraced the concept of textualism and rightfully lament the deleterious impact the application of this concept could have on businesses. According to John, “textualism requires the court to apply the plain meaning of the statutory text at the time the statute was originally.” That means of course we would apply the literal language of a statute enacted during the days of the Pony Express to, say, issues surrounding email and digital communications.
Or a better example is cited by John is his article: in a recent case heard by the Supreme Court, Carpenter v. US., the Court was faced with applying the 4th Amendment which involves the parameters of search and seizure to the today’s cell phone technology and the records generated by that technolgy. No easy task and a task made harder if the Court can only look at the meaning of the Amendment as written 200 some odd years ago without taking into account the spirit underlying the law and applying that spirit to today’s technology. We see this same tension under the Americans with Disabities Act and how Courts are trying to determine how that Act may apply to websites as opposed to physical locations. Or where state Bar Associations try to reconcile technical fee splitting rules with new and beneficial services that further the goal of reducing the A2J problem in this country.
And use of this concept is not just in place in Georgia: as John notes, the late Antonin Scalia and Bryant Garner embraced this concept in a book entitled Reading Law: The Intrepretation of Legal Texts, published in 2012 and has many supporters.
Textualism may certainly have its place. But blind adherence to statutes written 200 years ago can lead to difficult and even nonsensical decisions. Better to focus on the evil being addressed and how that evil is presented by the new technolgy related questions. By it’s definition, technolgy requires new ways of thinking. The law is not a static beast but most evolve with the times and as new dilemmas present themselves if we are to foster innovation.
“The law is never static; it is always changing… to ensure that the law constantly reflects changes in society itself”
The old maxim is still true: “The law is never static; it is always changing, being interpreted or redefined, as regulators and judges strive, with varying degrees of success, to ensure that the law constantly reflects changes in society itself”