June 6, 2008
Impact of Statutory Interpretation on Innovation
This is an extremely interesting piece, and I found it on line: D. Gordon Smith & Masako Ueda, Law & Entrepreneurship: Do Courts Matter, published in an Ohio States Law School journal, and on-line in pdf here. It is quite interesting, even though the statutory interpretation part is about 2/3 the way in, I suggest reading from the start.
It raises an issue I hadn't focused too much on, but I've been asked about and thought about now and again: should statutes be interpreted in light of technological change? For example, if a statute talks about "intercepting" an electronic communication, should we read that in light of technology as it was, or as it is? A common law example would be conversion: courts still struggle with whether the "old" rule that there had to be tangible property taken, and the fact that most value today is intangible. In that area, you see courts taking a "textualist" approach, if you will, to common law cases and limiting the law to tangible property, while others take a much more "purposive" view, and expand the tort to even purely intangible property.
Interesting read. It would be interesting to compare those conversion cases with the cases they are talking about, as they're parallel in many ways.
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