What Can Covid-19 Teach Us About the Law?
Prepared by Paul Zimmerman
April 7, 2020
For at least as long as I have been practicing, it’s been said that the law will never keep up with technology. Examples that support this proposition are simply too numerous to list. For example, think back to the early days of the internet and the issues that arose with personal jurisdiction and taxation. Look at the issues that must be addressed regarding autonomous vehicles and drones—not just regulations and issues pertaining to liability, but also coverage issues. Duties regarding large data discovery in litigation were unsettled for quite some time. On the criminal side, look at the Fourth Amendment issues that came with smartphones, both as to the volume and type of data they hold and generate, but also relating to passwords and encryption to protect that data, even from the government. Some of these issues are still unsettled, and the ones that are settled took years to resolve.
The lament has been that the law simply cannot keep up. Every legislative session, privacy, and data security bills are introduced in probably every state legislative body and Congress. Some of them are passed, but many languish or die at various stages of the legislative process. Passing a bill may be only the beginning, as regulatory agencies then start the process of promulgating administrative regulations.
It can certainly be argued that this timeline is due to a deliberative process that weighs all issues, examines multiple strategies, and considers all angles. Reaching not just a solution, but the right solution, requires research, analysis, debate, and decision-making processes that are slow by design. Or so they say.
The Rate of Change is Accelerating
The timeline for passing statutes and adopting regulations does not seem to adhere to Moore’s Law, which states that the number of transistors on a computer circuit board roughly doubles every 18-24 months, with decreases in size and cost. In short, the rate of change is accelerating. The law cannot possibly keep up with that—there are too many stakeholders, too many issues to wrestle with, and too many countervailing interests that have to be considered in reaching workable compromises, let alone reach a consensus.
Or can it? We are now facing the Covid19 pandemic. Within just a couple of weeks, court systems have adopted new procedures for hearings and appearances by phone or video. Signatures can suddenly—almost overnight—be notarized via videoconference. An unimaginable $2.2 trillion bill gets passed in days, which not only makes money available but addresses regulatory and technological barriers to distribution of and access to the relief. Possible treatments of Covid19 based upon existing medications are being explored and approved in record time. Dozens of regulations regarding insurance coverage, privacy, telemedicine, and who knows how many other topics are amended in days or weeks. Arguably, at speeds never before accomplished, legal issues are suddenly recognized, analyzed, debated, and solved. In days.
Have All Legal Issues Been Solved?
Have all legal issues raised by Covid19 and the proposed solutions been solved? Absolutely not. Are we bound to encounter unintended consequences and experience the downside of some of the changes made? Absolutely. But is the idea that the law cannot keep up unassailable? 2020 seems to be the year that may call that into question. At least until we settle back into whatever normal turns out to be.
We must absolutely guard against blind action just because of the loud screams of “Do something!” However, if ever the law has kicked into high gear and arguably solved problems, it has been in the last few weeks. When the frenetic pace, born of necessity, settles down, some examination of how it was possible, and in what way these efforts can or should that be duplicated, is important. In whatever instances, and to whatever degree, these solutions reached turn out to be the correct ones, isn’t it worth looking at how we got there in record time, and see how that can be duplicated in the name of efficient and effective development and adaptation of the law?
Without question, these legal solutions were the result of necessity, and would not have been reached this quickly otherwise. But should necessity be the only circumstance that can make it possible?
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