Sunday, September 5, 2021

Stretching the law – Applying old law to modern realities


[Tortoise and hare*]

Reality and law are a bit like the hare and the tortoise. While the former advances at breakneck speed, the other crawls forward at its own pace, seemingly oblivious to time. The intersection of new reality and antiquated law often requires courts to apply great creativity in applying statutes whether in terms of scope or extension.

A curious example was the case of the woman recently sentenced to one year in jail and ordered to pay 30,000 USD in restitution for entering a store in March of 2021 and intentionally coughing, spitting on merchandise and yelling that she had the Corona virus and people were going to die. She was drunk at the time and later regretted the incident but these are sensitive times. See here for more details. The interesting aspect of this case was that she was convicted of making bomb threats, a felony. I suppose the charge of endangering public health would have also applied but probably carried a lesser punishment. Given the fact that until now only governments had been involved in biological weapons, it is not surprising that no statute specific for intentional disease spreading. I would have to agree that telling people that they would die of Corona is a quite a bomb threat.

An older threat is the Nigerian scam, which involves informing people by email that they have been awarded money in order to get them to reveal their bank details. It is not an accident that that these scammers are generally not physically located in the United States. The Mail Fraud Statute dates from the late 19th century while the US Government enacted the Wire Fraud statue in the 1950's, both quite a while before the Internet and email. However, they are written quite broadly. They require the use of mail or wire communication, the intent to defraud and material deception. (For more details see here.) The courts have found it quite easy to extend its provisions to email crime. After all, the only difference is the letter e. US law is often written quite loosely in order to cope with future changes and avoid the continuous need to amend laws.

A more complicated challenge arises when the law is specific but the structural reality has changed. For example, when the US Constitution was finally ratified with all its amendments in 1790, the British and, consequently,US, legal system consisted of two parallel systems applying common law and equity, respectively. In overly simple terms the former could decree punishment while the latter could issue injunctions. The 6th amendment to the US Constitution guarantees the right to a jury trial for the former but not the latter. Two changes occurred: the US and UK  merged these courts; and new modern crimes emerged. For example, when the SEC was formed to regulate the stock market in 1934, it had the power to prosecute financial crimes and demand both fines and injunctions. The issue of whether the defendant is entitled to a jury trial has kept the US courts of appeal quite busy. For example, in 2016, a Ninth Circuit Court opinion, in the case of U.S. Securities & Exchange Commission v. Jensen, following precedence, transposed the distinction to modern times and ruled that when a legal remedy (civil fines) is involved, the right to a jury trial is relevant. See here for more details. In other words, they acted as if the trial had occurred in 1790. There are several other areas of law where US judges act on the same basis.

So, while watching the speedy rabbit of reality may be fascinating in its own way, observing the plodding legal system cope with reality is no less captivating, albeit frustrating at time. I assume that other legal systems face the same problem and cope with it in their own way. Law truly stretches the mind.

* Add captions to picture help the blind access the Internet. Picture credit: Image by <a href=";utm_medium=referral&amp;utm_campaign=image&amp;utm_content=6570775">StephenWheeler</a> from <a href=";utm_medium=referral&amp;utm_campaign=image&amp;utm_content=6570775">Pixabay</a>

No comments:

Post a Comment