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Massachusetts Appealing Microsoft Ruling
linuxwrangler writes "Criticizing the "loophole-filled deal" and saying "We are prepared to go it alone," Massachusetts Attorney General Tom Reilly has announced that Massachusetts is appealing the Microsoft ruling. Seven other states have dropped out and are negotiating enforcement and attorney fees. West Virginia is still undecided on an appeal."
They're not appealing the verdit. The verdict was guilty. They're appealing the pnishment. They're stating that they do not think that the punisment (go be nice) is not in line with the crime.
Appealing a ruling is certainly not trying someone twice for the same crime. What's happening is that they are taking the case to the next level of the appeal process. Happens all the time, all the way up to the Supreme Court of the US. This has nothing at all to do with trying them twice. In fact, they've been found guilty. What the argument is over is the punishment.
Think of it this way. Someone negligently drives their vehicle into your house (Happened here last week, a semi lost control and took out half a house. Everything else in the example is made up.) Now let's pretend that the driver was forced by the company to drive 12 hours a day, clearly against the rules. The trucking company's insurance refuses to pay. You take them to court and allege 1) that their employee knowingly violated trucking rules and regulations 2) that the company knew their driver was breaking the law 3) that the company forced them to break the law and 4) that the driver was on company business at the time of the accident. The jury finds in your favor. The trucker, his company, and their insurance are all found liable. Then the judge says, "You get a dollar out of this to pay for your medical bills and to rebuild your house, and the company can continue to break the rules." First, you'd be pretty po'd. Second, you'd appeal the judges ruling to a higher court. Which is exactly what's happening here.
The AP wire story offered a bit more explanation as to why Tom Reilly, the Massachusetts Attorney General, is appealing the Microsoft antitrust case ruling:
"Reilly characterized the settlement between Microsoft and the federal government, which a U.S. district judge approved earlier this month, as a ''loophole-filled deal'' that won't affect the software maker's aggressive practices or send the appropriate message.
''Microsoft has been found to have repeatedly violated the antitrust laws,'' Reilly said. ''We believe that remedy must send a message that breaking the law does not pay.''"
It may ultimately prove futile for Massachusetts to send this message to Microsoft, but it is worth the attempt. The only other way that Massachusetts can send a message to Microsoft is by replacing Microsoft products with other vendors' commercial or open source products.
It's always a good idea to know what you're talking about.
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the strongest word is still the word "free"
Well, maybe you have missed something: this could be a profit center for the states. From this story:
There is also the name-recognition factor, which is so dear to the politically ambitious Attorney General, in any state.
See what I've been reading.
Read them here, or the AG's office press release here.
Also, a nice timeline/chart of the litigation is here.
Tom Reilly is a nice guy. He even shook my hand in my office! (Granted, it was really his office... that I just happen to work in, but he was still nice enough to stop by and say hi.)
It should also be noted by anyone who accuses him of doing this for votes that he ran unopposed in November's election.
That's my purse! I don't know you! -- Bobby Hill
Lets say that Massachusetts ends up getting everything that Open Source advocates, Linux users, etc want in terms of penalties against Microsoft. Does this apply to all states after they have settled? Or would Microsoft have to have seperate product lines and "features", depending on the legal conditions in each state?
Well IANAL, and all of that stuff... As I understand this, this is an appeal of a ruling on the federal level, therefore it will have a national affect. This is not a new case being brought up in Mass. jurisdiction, but an existing federal case, as the state of Mass. being on of the litigants...
btw, what is the next level of appeal for this puppy? I mean, theoretically how long can this thing go on? (read as: How many hops til they hit the supreme court?)
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Actually Tim Reilly addressed this issue. Because Mass. (and other states?) planned for this to be a long, drawn out battle, there isn't much cost to continue the status quo. We can also hold out for a better settlement. I wish I could say this was because of principles, but we probably have more high tech competitors to Microsoft than anywhere else.
http://en.wikipedia.org/wiki/Signature_bloc
Did Microsoft give up its aggressive practices? This article gives an overview of the present state of things; judge for yourself: Windows XP Shows the Direction Microsoft is Going. If Microsoft ended its aggressive practices, why continue legal action? If Microsoft continues being aggressive, why shouldn't legal action continue?
Now that I've got my cheerleading out, check out the update on the appeal, which contains Tom Reilly's comments on it. Basically, it explains why they're pursuing a harsher punishment.
The AG won the re-election this month. He ran un-opposed. The MA Attorney General is a complete buffoon. He passed handgun control measures in this state that deemed pretty much all modern semi-automatic handguns unsafe for the public. They're perfectly fine for the LEOs in the state to use Glock 22s but for the common citizen, he needs to make some consumer protection laws to deny us our 2nd Amendment rights.
This lawsuit will be a complete waste of taxpayer money. But I guess that's what liberals do best.
Her injuries were extraordinary -- 2nd and 3rd degree burns. The coffee burned her skin off. I like to think I'm reasonably educated, yet I had no idea that a cup of hot coffee could cause damage requiring skin grafts. I've certainly tucked a cup of coffee (or, from McD's, a hand grenade) between by legs, more so in older cars that did not have the godsend of cup holders. For people too lazy to read the article, The McD's coffee was roughly 50 degrees hotter (190F) than the coffee people brew at home. Water at 120 is hot enough to scald in 30 seconds, and the higher you go the faster it is.
There is no real need for the coffee to be that hot, except to convenience McD's which doesn't want coffee to cool too quickly sitting out, and doesn't want annoyed customers coming back. So they consciously made a business decision to scortch the occasional patron -- and got the ire of the jury for this. The food service industry responded to the decision by lowering coffee service temps.
She initially offered to settle for slightly more than her medical bills. This was not a gold-digger.
The punitive award WAS excessive. The jury was evidently pissed and exceeded its power, but in its defense consider that a punitive damage is supposed to hurt -- hence punistive or punish -- and how much does it take for a behemoth like McD's to even notice? The judge properly intervened to reduce it radically, by over 2/3 (my memory of the numbers differs from what the linked article says). The plaintiff then had a choice whether to retry the case or take the remittitur. The point is that the system worked.
I used to laugh at this case, too. Until I got a real accounting of the facts halfway through law school, not the bullshit blindered version reported by the media and trumpeted by the conservative critics who would like to gut tort law. The only thing good about them is that most did not know the truth either, and negligently parroted what they had heard somewhere, an urban legend. With the internet it is more difficult to get away with this sort of propagandizing.
"how effective would any settlement including any "enforcement" techniques (read the last para of the article) actually be, considering the stance of the Fed and the other states?"
Ultimately, their opinions don't matter. It's a federal court, so if Massacusetts wins this appeal and gets harsher punishments out of the process, the results are binding nationwide, Ashcroft or no Ashcroft.
"how much money will this cost Mass taxpayers? (glad I don't live there)"
The MA Attorney General is a full time job. The salaries of everybody involved will be paid whether they're pressing their appeal in this case or not. The only real "cost" on the commonwealth's part is the price of putting people on this case that could be working other cases.
"when is the DA position up for grabs? (i.e.: how many votes is this person trying to suck out of people?)"
Will this be an election issue? Would this help or hinder the incumbent in the next election? Is it possible that the DA is doing this out of principle, at least to some extent?
:) It's a good question. The "phenomenally stupid law" question is an old one.
... unless it helps them in the polls.
There's a reason the Supreme Court is called Supreme. It's the end of the road. There is definitely no way to force them to review a case, and imagine how cranky they'd be if you did. Even if there were oversight, that could be corrupt, and so on in a sort of Zeno's Paradox. Alternatively, the corrupt Court could grant cert. and uphold the law, same result as refusing to hear it but yielding precedent controlling all of the nation's inferior courts.
The Senate can impeach Justices for certain reasons, but being stupid is not one of them. (On that topic, if the Senate abuses the impeachment power, who reviews that? Another example of unreviewability. Don't worry, the President gets a few absolute powers, too.) Also, if the Congress was corrupt enough to pass the law, they're not going to attack the Court for supporting them
Hang on, there is one last super-supreme court -- the public. The bedrock of democracy. For better or worse. They get Congress to repeal the law by replacing all of them if necessary by voting. Unless they all hate blondes, too, or like most Americans don't show up to vote.
Humor aside, we have a Constitution, the supreme law, as a check on discriminatory laws by Congress. No matter how popular, certain kinds of laws can not be enforced, protecting minorities from overreaching by the majority assuming a sane Supreme Court. For example of wackiness, the majority can't sentence the minority to death; that would break a couple of amendments. If you think that's a goofy example, recall that Nazi Germany had a valid court system applying the Nuremberg laws -- with a Constitution the judges could have struck the laws down and gone to concentration camps. Most countries do not have this judicial review, where the courts get the last word.
But wait! There's even trump card on the Constitution: the amendment. That requires a supermajority 3/4 vote of the states, which is hard to get.
Dizzy yet? It's called checks and balances -- Schoolhouse Rock did a favorite number about it ("We the People."). Plus, you can see why lawyers use so many footnotes, they just can't stop worrying there's something they left out.
I just checked google (mcdonald's coffee scalding) and saw lots more written about this case and others like it. Here is a sober analysis of the case. Very important is McDonald's detailed knowledge of the hazard -- versus consumer unawareness -- and its lack of intention to do anything about it after 700 unnecessary injuries.
Note also that these were really nasty burns, sometimes with no culpability of the victim.
Beware the words "tort reform" accompanied by deliberately distorted stories, as has happened here. The reform proponents have to be able to come up with at least a few good anecdotes without corrupting stories that actually contradict their position. And even if they do come up with worthwhile anecdotes, remember that anecdotes are unreliable (!) and that statistics or a broad sampling is a better foundation for changing the law.
I thought of yet another check -- civil disobedience, or disregard for the law in an effort to win change. For your example, we could all bleach our hair blonde and have a rally -- they can't arrest us all!
:)
Jury nullification, too... but you've fallen asleep.