Maryland Task Force Proposes Special Tech Courts

rkent writes: "In this NYTimes article, Microsoft makes a good point, the wrong way. They argue that their case was 'so technical and esoteric' that Judge Jackson couldn't understand it. However, the Business and Technology Division Task Force in Maryland is examining the viability of setting up special courts for tech cases. Which may or may not have helped Microsoft. But would it have helped 2600? And future Internet 'pirates?'"

Setting up special 'techno-courts' has the glossy sheen of futurism and hipness, but if the proposed high-tech courts are specialized by the content of their trials, what's to stop them from becoming self-perpetuating, invasive, and self-aggrandizing bodies within their particular fields of purported expertise, and using that expertise as a means of blocking criticism? Would such special courts be an improvement over better educating the existing judiciary?

Comments

Re:What an incredibly bad idea

[MillMan]

After all, we've seen on /. a thousand times how disillusioned the technically skilled population is with many, many aspects of the law. Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests. Are these the people you want as judges in cases like 2600?

You mean people who understand the needs of the common person and not just those with money? Sounds good to me. But your scenario would never happen, they aren't go to hire the average slashdot reader to be a judge. These people will have to have law degrees and experience, just like any other judge.

It also smacks of elitism that certain cases should only be allowed to be judged by an elite cabal of "tech judges". Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

Because there is no such thing as being impartial. If there was, supreme court judges would all rule in the same direction. Your biases and experiences affect how you think. On top of that, the complete ingnorance displayed by some judges in this area *is* a problem. Having to think in terms of analogies isn't good, as it seemed judge Jackson did.

Sorry, but this wouldn't solve any problems - no judge could keep up with all of the advances in the various fields of computing unless they worked in them. And if they did, you could never be sure that they were unbiased. I say we keep this elitism out of the judicial system, and stick with what we know works.

I think it might help a bit, but I worry about something different than you: that the judges chosen would be "corporate whores" worse than any that are already out there. The effectiveness of a seperate court like this depends completely on the judges chosen.

Tech companies tend to think that it's ok to get around regulations and often they do. This is because tech companies bring in high paying jobs to the community, and can get away with more than the average company. I'm afriad that in this case microsoft is just saying something like "we want a judge who will side with us, because we know we're right because we are". There is no reason to believe other tech companies would be different.

Justice must be seen to be done

[SimonK]

I do believe this is a bad idea. Its a principle of common law, enshrined in the US constitution, that justice must not only be done but be seen to be done. Having a separate system of courts that deal in things that are supposedly too hard for ordinary (read: stupid) people to understand is not going to help that goal. The implicit statement is that only supersmart people who speak techiegook are competent to judge these cases, and only similarly rarefied souls are competent to testify in them.

The likely consequence would be that ordinary folk would be reluctant to bring cases to these courts for fear of being made to look foolish. You'd end up with a hoard of especially expensive technolawyers, mostly in the pay of big corporations, who'd be the only people who could afford them. This would be a recipe for more and more pro-corporate decisions.

I know there's a certain attraction to this idea. The concept of a discrete court system that "spoke our language" seems attractive, but I don't think it would be like that at all. You'd end up with great tottering piles of incomprehensible precedent couched in a combination of techspeak and lawyerese that would effectively make the whole thing a disaster for anyone but the lawyers working it.

I'm not saying the courts don't need technical advice, and I'm not saying the existing system, where different technical witnesses slag each other off in court works well, but the answer is not to set up a new court system with even higher barriers to entry than the existing one. I quite liked the way the "silicon implants cause cancer" case was handled, where the judge appointed an expert panel that questioned the two sides expert witnesses and then gave an evaluation of the evidence in terms "the court" (ie. judges and jurors) could understand.

What an incredibly bad idea

[flatpack]

After all, we've seen on /. a thousand times how disillusioned the technically skilled population is with many, many aspects of the law. Many people here advocate "civil disobediance" or even outright flouting of the law as a means of voicing their protests. Are these the people you want as judges in cases like 2600?

It also smacks of elitism that certain cases should only be allowed to be judged by an elite cabal of "tech judges". Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

Sorry, but this wouldn't solve any problems - no judge could keep up with all of the advances in the various fields of computing unless they worked in them. And if they did, you could never be sure that they were unbiased. I say we keep this elitism out of the judicial system, and stick with what we know works.

Re:What an incredibly bad idea

[Chakotay]

Why should a case which involves technical concepts merit its own special type of judge, one which is likely to be biased by dint of their interests and knowledge?

That indeed is very true... You can hardly expect a tech judge to be impartial to the Microsoft trial. They'll either love or hate Microsoft, which will affect their decision.

no judge could keep up with all of the advances in the various fields of computing unless they worked in them.

Indeed, but currently most judges have no knowledge of the various fields of computing whatsoever. How can you expect somebody who doesn't know anything about technology to effect an honest trial in a technology-based case? How can you expect a mostly a-technical jury (because, face it, most people are) to make an impartial and well informed decision about a technical case?

I don't think there's a need for a special technical court. A team of technically knowledgeable advisors to courts would be a much better idea, imho...

)O(
Never underestimate the power of stupidity

hmm

[acehole]

who gets to be the judge?

how about linus?

If i was gonna get 40 lashes in a public square for using napster i'd rather have the ruling made by someone i can respect ;)

Hmph

[Urmane]

"They argue that their case was 'so technical and esoteric' that Judge Jackson couldn't understand" ... that they "did nothing illegal"? Pardon me, but does anybody in The Real World see that MS is just a bunch of whiners? I mean, really, I know the rule about "deny, deny, deny", but I think there's a corollary that states "try not to sound like an eighth grader while doing it".

Personally, I'm appalled at the thought of setting up "special courts" for anything. I'm also appalled at the thought that this might be a direct result of the govt's challenge of MS. I literally would not expect the citizenry to be able to tell the difference between the Tech Court and MS Justice 1.0, and I shudder to think of what precedents might be set by such a court. Come on, think, people; why do you think the courts are set up the way they are? Yes, there needs to be a solution to the problem of judges and lawyers who do not understand high-tech, but this ain't it.

--

Bad, but the state courts are bad

[FallLine]

Well I agree that having special "tech" judges is mostly unnecessary, and probably even unwise. I don't believe a "technical" judge for one is really going to be able to educate himself sufficiently in the state of every art. I think all it really requires is a fairly intelligent and unbiased judge that is willing to listen. Even though Jackson conceded he was not an expect by any means, I think Jackson's assesment of the MS case was right on the money.

Unfortunately, however, most states have really horrible courts when it comes to issues like business law. It's so bad, in fact, that many corporations have chosen to incorporate in Delaware [widely regarded as having the best], for issues beyond just tax laws. Delaware, unlike most, has adopted a certain expediency and fairness and predictability. Delaware Supreme Court had done an excellent job of monitoring the lower courts, and effectively regulating them to keep abusive lawsuits out.

We don't need "special" tech judges [if anything, business law is more demanding], we just need decent and competent judges in the state courts that are well regulated. To this end promoting judges based on merit, rather than requiring them to run for election, would make for a better system.

More Microsoft trash, if you ask me.

[CodeShark]

Having read the first fifty or so comments, I am surprised by how many people have missed one of the main points which is that in spite of volumes of evidence to the contrary, Microsoft is still basically insisting that they "did nothing wrong", in spite of the fact that very few of the "findings of fact" upon which Judge Jackson based his decision are really in dispute.

So when the NYT reports that Microsoft thinks they got a bad decision because the judge didn't understand the technical, I am inclined to remind M$ that the specific reason they lost is that Judge J. was not only probably the most clued in judge they could have had the misfortune to come to trial with, and he gave them every chance to settle the anti-trust litigation -- and they, not he, blew every chance they had to get a better outcome for their company.

Also, AFAICT (as far as I can tell, if you're new to /., IRC, etc.) Microsof still continues to use 90% of the same unfair business practices which the Sherman acts prohibit (tying, etc.), and aren't really interested in changing the way they do business in the future.

And as a measure of whether or not their monopoly power has a negative effect on consumers: witness the rise in OEM cost for the basic x86 OS, for example -- rising from a few dollars back in the MS-DOS days, $20-40 during the early Windows days, to (last time I sold a system -- about a year ago -- I'm doing software exclusively now), $100 or more.

Which is why (on those rare days when I have extra time, like today), I work on Open Source projects or training other corporate folks in the OpenSource model of IT development. I may not be the loudest Open Source proponent, nor the most articulate, but I do know one thing: the best software choices for the future aren't centered around M$, because of the exact issues that I feel Judge Jackson correctly nailed M$ for.

Money rules

[weeble]

I believe we would not see any more 'fair' justice. I do not believe that judge Kaplan would have had a different verdict had he been better informed regarding the relevant technologies.

OJ proved (the following civil case against him vindicated this view point) the the outcome of a trial in the US can be bought.

Having technology courts in the US may help, but does not tackle the cause of the problem.

Two quick comments:

[Masem]

1) I doubt tech courts would have helped 2600 -- as the other article today points out, this is more of a free speech issue as 2600 never created the code, though there are issues as the use of the code. But the creation of such courts could be a good think.

2) Unfortunately, there are too many issues at stack *right now* that by the time the tech courts would be in place, these issues would have exhausted their appeals process. Take a look at the problems with the Patent office in getting computer technological compenent people into place.

3) Very very commonly, cases involving sciences use an expert witness, generally a scientist or engineer that is unrelated to the case but an expert in the field. I would think a similar system would work for computer experts, however, there is something of an informal fraternity of geekdome throughout this area, so that finding a computer expert that was imparital to the deCSS case would probably be very difficult. But I don't see why this can't be attempted at least.

You must be kidding, this is not rocket science

[GMontag]

Setting up special 'techno-courts' has the glossy sheen of futurism and hipness, but if the proposed high-tech courts are specialized by the content of their trials, what's to stop them from becoming self-perpetuating, invasive, and self-aggrandizing bodies within their particular fields of purported expertise, and using that expertise as a means of blocking criticism? Would such special courts be an improvement over better educating the existing judiciary?

We already have a perfect example of how specilized courts work (actually, they don't work very well) and that is called Tax Court.

What happens in any of these ivory tower systems is that the common folks (including those of us on /.) get bamboozeled by the "self-aggrandizing bodies within their particular fields of purported expertise". This is certainly not justice.

The 2600 case was one of pure bias, no decision in that case was backed up by any fact, and it would have probably been worse in a specialized court. It happens in "tax court" every day: state brings charges, state inflicts punishment, you have to prove yourself not-guilty.

I wish that I had the refrence for a glairing case of this from just a couple of years ago. An individual had paid his tax bill. The IRS cashed his check. Taxpayer had the cancelled check and bank records that the money left his bank and went to the IRS bank. The bank that the IRS used to clear the check lost the money. The IRS went after the tax payer. No matter how many times he produced the cancelled check the IRS said "we still do not have payment". The tax court ordered the guy to pay again! Now, if a group of "regular folks" had gotten to hear this case, it would have ruled for the tax payer, since the poor guy does not run the bank and all, but an "expert court" ruled the other way.

The above is the quality that you get when beurocrats are given any power over your life.

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