References to “the law” are much like references to “food.” Many types exist. A frequent breakdown is into categories known as statutory, common, and regulatory law. In this article, we take a deep dive to answer the question of what is statutory law?
Statutory law is legislation passed by a legislative body. However, a passed bill does not immediately become law. The legislation must be signed into law or vetoed by an individual representing the executive office of the government in question. In the United States, one can find all federal legislation in the United States Code.
As I am writing this, the world is facing a COVID-19 threat. Given the economic distress caused by government isolation orders, legislative bodies around the world have been passing legislation designed to compensate their citizens with the President or appropriately titled individual in the executive arm of the government signing the legislation into law. In the United States, Congress wrote and passed the statutory law known as the CARES Act providing $2.2 trillion in funding, which President Trump signed into law in late March 2020. The CARES Act went into immediate effect once the President finished his signature.
How is statutory law developed from scratch? Millions of kids in the United States learned the process through a video known as “I’m Just A Bill,” which is as on-point today as it was in the past.
The Children’s Online Privacy Protection Act – “COPPA” – is a federal privacy law that requires companies to obtain verified parental consent before collecting personal information online from kids under 13. The legislation was introduced to Congress in 1998 as one of a number of bills associated with the online world. In October of 1998, COPPA was passed by Congress and signed into law by President Clinton. Once the law went into effect, all companies operating online in the country were required to comply with it. In short, COPPA is a classic statutory law.
Statutory Law and Regulations
Many people are surprised when they read statutory law. Much of the code text is rather light on details. The somewhat humorous truth is many legislative bodies shift the burden of determining how the law should apply to real-world, day-to-day situations to administrative bodies. Congress, for example, will often identify an agency that is responsible for enforcing the legislation in question, and then command the agency to issue regulations guiding parties that must comply with the law on how best to meet such a goal.
Let’s return to COPPA for an example of how this plays out in the real world. Congress notes in the COPPA text,
§6505. Administration and applicability
(a) In general – Except as otherwise provided, this chapter shall be enforced by the Commission under the Federal Trade Commission Act.
In short, the Federal Trade Commission – FTC – will be the governing body.
Congress then goes on to write,
Not later than 1 year after October 21, 1998, the [FTC] shall promulgate under section 553 of title 5 regulations that –
(A) require the operator of any website or online service directed to children that collects personal information from children or the operator of a website or online service that has actual knowledge that it is collecting personal information from a child –
(i) to provide notice on the website of what information is collected from children by the operator, how the operator uses such information, and the operator’s disclosure practices for such information…
The code then contains a long list of topics the FTC is required to issue regulations for concerning COPPA. For example, the FTC must issue regulations on how a company obtains consent from a parent – is an email exchange okay? How about video conferencing? And so on.
You can think of statutory law and regulations much like a body. The legislation is similar to the skeleton while the regulations provide the organs, muscles, skin, hair, and so on. Yes, you need a skeleton to function, but the rest of the anatomical pieces are what most people focus on [where are my abs? One thousand situps for nothing!].
Statutory vs. Common Law
If there is an equal to statutory law, common law is it. Common law refers to a legal standard established through litigation. The process of developing common law is a bit more complicated than many realize. The process works as follows:
- A trial occurs.
- The judge in the trial makes particular rulings on matters of law according to then-existing case law and statutory law.
- A decision is reached in the trial.
- The decision is appealed to a higher court, known as an appellate court.
- The appellate court reviews briefs submitted by both parties as well as takes oral argument on the issues.
- The appellate court issues a ruling, primarily on whether the trial judge interpreted the law correctly.
- The appellate court can then decide whether to publish a written opinion.
- If it does, the opinion is binding on all courts in the jurisdiction of the appellate court.
- The losing party can appeal the case to a higher court, which may or may not agree to hear it.
Common law often focuses on interpreting statutory law. Not always, but perhaps 75 percent of the time. In such cases, the court is faced with questions such as whether the legislation is constitutional and what is required in relation to compliance.
Let’s look at a dispute currently raging in the courts. The question is, does a federal statutory law known as the Americans with Disabilities Act (“ADA”) apply to websites, to wit, do online businesses need to make their sites and apps available to the disabled?
The ADA was enacted a bit before the Internet was on anyone’s mind as a commercial platform. Given this, the language in the law and how it applies to the web is a hotly disputed topic. Title III of the ADA prohibits discrimination against those with disabilities in places of “public accommodation.” The law does not define a place of public accommodation as a park or a similar location you might have in mind. Instead, Congress defined a public accommodation as a facility operated by a private entity whose operations affect commerce – businesses.
Unfortunately, Congress has failed to update the ADA to take into account the Internet, so we are faced with two questions:
- Does the ADA apply to the Internet?
- If so, are there any exceptions?
The United States federal court system consists of twelve Circuit Courts of Appeal. These courts are one step below the Supreme Court and provide most of the legal interpretations we see for federal law. As to the two questions I detailed above, the courts have ruled as follows:
- Does the ADA apply to the Internet? – Yes.
- If so, are there any exceptions? – The Circuit Courts are split.
While the courts unanimously agree the ADA applies to the online world, they differ as to whether all online properties must comply. The issue boils down to what constitutes a “public accommodation” in the digital world? Some courts have ruled that any website or app is a public accommodation so long as the public can merely access them. Other courts have ruled sites and apps are not public accommodations unless there is a nexus between those properties and a facility in the real world, providing the same essential services or goods.
Consider a traditional bank such as Chase. You can visit a branch to undertake financial transactions. You can also access your account online through the bank’s website. The branch and site provide substantially the same services. Would the website of Chase need to be ADA compliant? Every federal court would rule in favor of requiring compliance.
Now consider a website such as a blog. Is it a public accommodation? The courts would split on this issue. Those that believe there must be an equivalent physical facility would rule the blog does not need to comply since there isn’t a branch or store consumers can visit. However, courts that don’t require a physical location to trigger compliance would come to the opposite conclusion.
The Circuit Courts currently split on the ADA as follows:
A. Must Have Physical Location:
- Third Circuit Court: Delaware, New Jersey, and Pennsylvania
- Fourth Circuit Court: Maryland, North Carolina, South Carolina, Virginia, and West Virginia
- Sixth Circuit Court: Kentucky, Michigan, Ohio, and Tennessee
- Ninth Circuit Court: Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington
- Eleventh Circuit Court: Alabama, Florida, and Georgia
B. Just A Website Triggers Compliance:
- First Circuit Court: Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island
- Second Circuit Court: Connecticut, New York, and Vermont
- Seventh Circuit Court: Illinois, Indiana, and Wisconsin
How does the legal system resolve splits of this sort? The United States Supreme Court should agree to hear an appeal from an ADA case and issue a ruling that establishes whether websites and apps must comply with the ADA. However, the Supreme Court hears a limited number of cases each year and has yet to take an ADA case. Unfortunately, it can be a long time before it does so.
While courts often review statutory law, the opposite can be true as well. If an appellate court renders a decision the legislative body in the jurisdiction finds unacceptable, it can pass a law to overrule the case. For example, in U.S. vs. Stevens, the Supreme Court struck down a federal law criminalizing the videotaping of animal cruelty because the law was too broad. Congress responded by narrowing the scope of the law and explicitly invalidated the Stevens decision.
In our example above, the Supreme Court will eventually rule on the ADA-Internet issue. If enough members of Congress reject the ruling, they could move to amend the text of the ADA to identify specifically whether the law should apply to the Internet and under what circumstances. Such an amendment would effectively invalidate the ruling of the Supreme Court on the matter.
To summarize, legislative bodies such as Congress pass statutory laws. Federal agencies often issue regulations for these laws. Courts establish a separate set of legal standards known as common law through appellate rulings that often, but not always, interpret statutes.
State vs. Federal Statutory Law
Statutory law can also be segmented by who is enacting it. In the United States, Congress establishes statutory law at the federal level, but states can pass legislation as well. The question then becomes what happens when these laws touch on the same subjects, but conflict?
Article IV, Clause 2 of the United States Constitution reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This language is known as the Supremacy Clause. Courts have held the Supremecy Clause should be interpreted to mean that where the federal government and a state have enacted laws on the same subject, the federal law is the appropriate authority. While this concept appears reasonably clear at first glance, parties have spent hundreds of millions of dollars arguing over where the line is drawn.
Consider spam email messages. California has long been the first legislature to pass laws on Internet topics, and this happened to be the case for email spam. The early California laws on the topic were harsh and an effective method to deter email spammers. However, the federal government came along and enacted the CAN-SPAM Act in 2003, a law with far less bite. Which statutory law controlled in spam cases? The CAN-SPAM Act pursuant to the Supremacy Clause.
However, states aren’t always powerless. States can carefully draft legislation to establish a legal requirement that does not violate federal law. For example, California enacted a new privacy law in 2018, known as the California Consumer Privacy Act. The “CCPA” creates requirements businesses must meet before collecting and using the personal information of residents of California. However, such a law could conflict with federal laws such as HIPAA and the Children’s Online Privacy Protect Act. The California State Legislature avoided this problem by explicitly stating in the text of the CCPA that where it conflicts with those statutes, the CCPA shall not apply. For example,
This title shall not apply to any of the following:
(A) Medical information governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or protected health information that is collected by a covered entity or business associate governed by the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191) and the Health Information Technology for Economic and Clinical Health Act (Public Law 111-5).
As you can imagine, state governments are not all that happy to be shunted aside whenever Congress passes a federal law on a particular topic of interest. This unhappiness leads to debates over federalism, which is essentially a discussion of whether the states or federal government should have more power. Prior to the Civil War of 1861, states typically had significantly more power than the federal government, a scenario we can still see in the modern world in countries such as Switzerland where the cantons [states] carry most of the authority. Of course, the federal government took back the power in the United States after the end of the Civil War in 1865.
What is Statutory Law?
Statutory law is legislation passed and enacted by government entities. It is considered an expression of the people’s will through their political representatives, but is open to challenge in courts. Still, statutory law serves as one of the foundational pieces of the rule of law and functioning of modern societies.