I see it happening over and over again. A legislature passes a statute. A new situation arises, one that doesn’t seem to have been anticipated by the legislature at the time of passing the statute. Judges must interpret the statute, and they often make one of two arguments: (1) had the legislature anticipated the case at bar, it would have clearly addressed it by encompassing or excluding it under the statute; the court should interpret the statute with its best guess about how the legislature might have addressed the new situation had it been aware of it when it created the law; or (2) the statute must be strictly construed; if the legislature really doesn’t like how the strict application of the statute’s language applies to a particular situation, then it can change the law.
I thought of this issue when blogging about the application of electronic surveillance statutes to people who record their encounters with police. In Commonwealth v. Hyde, a person was convicted for recording his conversation with a cop during a traffic stop. This is a situation that I doubt the state legislature considered when passing the law. The court concluded that the law contained no special exception contemplating situations where people record their encounters with police, and thus the defendant’s conviction under the statute was affirmed.
One of the problems with Interpretation #2 above is that legislatures rarely go back and update their laws. They pass laws, and courts encounter ambiguities and difficulties and unexpected cases. Yet only sometimes do legislatures go back and fix the laws to address these problems. Often, the legislature just makes the law and walks away. I have a casebook, and it is a chore constantly updating it. But I feel an obligation to keep it up to date. It is too bad that legislatures feel no similar obligation with respect to the laws they pass.
So what should be done in these situations? Regardless of whether one prefers Interpretation #1 or #2 above, there seems to be a fundamental problem if legislatures are not being diligent about following up over the way their laws are being interpreted. Now, one might argue that the courts are just anticipating the right interpretation most of the time, but I think the reasons why legislatures don’t follow up on old laws are that (a) it is hard work; (b) revising laws can be difficult political battles; (c) there are many other pressing issues on the table; or (d) it just isn’t on the current legislature’s radar screen unless there’s an egregious or highly-publicized case involving the law.
Meanwhile, however, people are convicted under these laws. People must make decisions based on these laws, which can be difficult if the laws have big ambiguities or don’t address emerging situations. More progress should be made examining how to deal with the inactivity and unresponsiveness of legislatures. Given the amount of legislation passed, and the number of issues on the legislative agenda, I doubt that voters are likely to push legislatures to revise old laws except in rare highly-publicized instances.
Guido Calabresi took a stab at addressing this problem in A Common Law for an Age of Statutes (1982). Calabresi contended that courts should actively fix and update laws. Interpretation #1 above is one common way that courts already do this. It allows courts some leeway in ensuring that laws are interpreted reasonably and justly. If the legislature doesn’t like the result, it can change the law. Most likely it won’t, as I’ve pointed out above. But at least Interpretation #1 will let laws be a bit more flexible and responsive to the unique situations they might be applied to. That said, the ideal solution is to figure out a way to encourage legislatures to keep their laws in better shape. But is there a solution to this problem? Any ideas? In the absence of an effective solution, does this problem justify Interpretation #1?
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.