Investing In Lawsuits Beats the Street

guga31bb sends word on the next wave of investment in a slow market: bankrolling others' lawsuits. The practice sounds on the face of it indistinguishable from champerty. "Juris typically invests $500,000 to $3 million in a case, Mr. Desser said. He would not identify the company's backers, but said that 'on the portfolio as a whole, our returns are well in excess of 20 percent per year.' He added, 'We're certainly beating the market.'"

Comments

Ah yes.

[Jurily]

Treating the legal system as a business opportunity is not new, but to base a business model on it?

You guys should start cutting down on lawyer fees, fast.

Re:Ah yes.

[thrillseeker]

Once upon a time, our elected official were people who had built their own businesses - people who knew how hard it sometimes was to make payroll - and people who knwe how hard it occasionally was to be unable to make payroll. We had laws that encouraged growth, which requires someone, somewhere to voluntarily invest something, whether it be his own time or someone else's discretionary nickel. When something worked it was praised, encouraged, duplicated and expanded, and when something didn't, it was simply discarded. Today, our electees are basically all lawyers - and we have an economy in meltdown, archaic business efforts are kept around, and even subsidized because it buys votes, and we have a financial system where one can do better with destruction rather than construction. One wonders at correlation ...

Re:Ah yes.

[Fujisawa Sensei]

Treating the legal system as a business opportunity is not new, but to base a business model on it?

You guys should start cutting down on lawyer fees, fast.

Lawyers have been treating it as a business opportunity, why shouldn't the capitalists get involved?

Re:Ah yes.

[Actually, I do RTFA]

Treating the legal system as a business opportunity is not new, but to base a business model on it?

Also not new. See, Law Firms

In a non-pedantic way, this business model has existed for a while, but I've usually heard about it on a smaller scale.

You guys should start cutting down on lawyer fees, fast.

It's actually based on the non-lawyer fee side of the equation. That is, taking money that would normally go to the plantiff, not the plantiff's lawyers.

And while it is a lot of money, keep in mind that it is being paid by people breaking the law directly to people who seek out and punish them. It's an idea carried over from Athenian society, and it seems to properly incentivize people to engage in a 5-year battle against a giant corporation to enforce laws to which the government cannot devote sufficent resources.

Re:Ah yes.

[DerekLyons]

It must be a nice world you live in - because it sure as hell isn't ours.

Re:Ah yes.

[mahadiga]

Check this
"Factoring is the purchasing of your invoices as an asset, not a loan. Liberty Capital Funding provides immediate cash enabling you to meet necessary business expenses and costs such as business leases and payroll. Your invoices are used as collateral until funds are received from your client." http://www.liberty-capitalfunding.com/funding_process.html

returns are well in excess of 20 percent per year

[ionix5891]

well if that doesnt ring any alarm bells!

  maybe we should introduce Bernake to these people :D

Fire Sale

[siloko]

Investing in cultural naval gazing more like. When the process of legal shikanery yields better returns than investing in real world products then it is apparent that the our culture has run aground . . .

Re:Fire Sale

[Jurily]

When the process of legal shikanery yields better returns than investing in real world products then it is apparent that the our culture has run aground . . .

No, it's just the logical conclusion of a culture of worshipping money.

Re:Fire Sale

[Anonymous Coward]

Worshiping other people's money rather than your own, you mean.

Re:Fire Sale

[malkavian]

No, it's the logical conclusion of a culture that considers ethics of no consequence.
You can worship money all you like, and still create a fantastic environment (run your own company? In a company that you enjoy being in? They're not there for the express purpose of making your life fun, they're there to chase money. Ethical companies make a great place to work, the leeches will burn you out and leave you broken). However, all this activity boils down to is parasitic behaviour. When you can make more by discarding ethics, not producing anything and basically sucking the life out of anything that does produce, then the problems start.

Re:Fire Sale

[Jah-Wren Ryel]

No, it's just the logical conclusion of a culture of worshipping money.

And lawyers are the new priesthood.

Re:Fire Sale

[noidentity]

Investing in cultural naval gazing more like.

What's wrong with watching ships in the water?

Re:Fire Sale

[Drakkenmensch]

The real problem here will start where every situation takes a turn for the worst - when everybody and their grandmother start borrowing money to get into the "surefire profit" business and get into debts, scams popping left and right to provide investment opportunities and toxic assets (like our good friend Lionel Hutz) getting into the business to collect some of the windfall. The market will collapse, leaving most small investors holding an empty bags while the usual rich people run off with the leftover money. Don't believe me? Just look at the internet .com bubble and the recent housing market collapse.

Re:Fire Sale

[moeinvt]

If lawyers are the new priesthood in the cult of money worship, bankers must be the deities and demi-gods.

Re:Fire Sale

[umghhh]

sounds like description of majority of financial institutions to me. However 'not producing anything' is not necessarily a bad thing - services work that way and as long as there are customers willing to pay for the service it is fine. The problem is if one branch of economy bubbles out of proportions and creates inbalances which make the economy crash - lawyers and wizards of finance are two such examples in western world.

Re:Fire Sale

[sjames]

That may be why the world's major religions call for strong limits (or ban outright) barratry and usury.

Re:Fire Sale

[Anonymous Coward]

try "chicanery" [http://en.wiktionary.org/wiki/chicanery] instead.

Re:Fire Sale

[teh.f4ll3n]

What about the guy flipping the "on" switch on the money printing machine? Where does he fit in all of this?

Re:Fire Sale

[Jah-Wren Ryel]

Pay no attention to the man behind the curtain.

Re:Fire Sale

[Kjella]

When you can make more by discarding ethics, not producing anything and basically sucking the life out of anything that does produce, then the problems start.

Heh, it's a good question what's cause and effect here - are lawyers the unethical bloodsuckers you make them out to be, or is it a result of companies that engage in vast unethical behavior hoping not to get caught? It's not surprising that if their legal strategy is to get away with it and these guys are good at not letting them get away with it then there's good money in that.

Because it's unheard of that "producing companies" ever try to get away from marketing bordering on fraud, product quality tjat's trash or outright dangerous, disregarding worker safety/environment/child labor/other regulations, defraud investors, discriminate employees or whatnot. Face it, some companies are rotten and it has nothing to do with legal, it's rotten everywhere including Sales, Engineering, Financial, HR and whatnot. Legal is just the symptom.

Of course some will say that using lawyers to fight that is to fight fire with fire. But there's really not many stunningly good alternatives to the rule of law. If a company ripped people off I'd actually rather see them taken to court and lose a class action than not get sued at all and get away with it, even if most of the money don't ever reach those ripped off. Lawyers are an imperfect tool in a world that's pretty imperfect to begin with.

Re:Fire Sale

[bmajik]

No, it's just the logical conclusion of a culture of worshipping money

http://www.capmag.com/article.asp?ID=1826

"So you think that money is the root of all evil?" said Francisco d'Anconia. "Have you ever asked what is the root of money? Money is a tool of exchange, which can't exist unless there are goods produced and men able to produce them. Money is the material shape of the principle that men who wish to deal with one another must deal by trade and give value for value. Money is not the tool of the moochers, who claim your product by tears, or of the looters, who take it from you by force. Money is made possible only by the men who produce. Is this what you consider evil?

"When you accept money in payment for your effort, you do so only on the conviction that you will exchange it for the product of the effort of others. It is not the moochers or the looters who give value to money. Not an ocean of tears not all the guns in the world can transform those pieces of paper in your wallet into the bread you will need to survive tomorrow. Those pieces of paper, which should have been gold, are a token of honor--your claim upon the energy of the men who produce. Your wallet is your statement of hope that somewhere in the world around you there are men who will not default on that moral principle which is the root of money, Is this what you consider evil?

"Have you ever looked for the root of production? Take a look at an electric generator and dare tell yourself that it was created by the muscular effort of unthinking brutes. Try to grow a seed of wheat without the knowledge left to you by men who had to discover it for the first time. Try to obtain your food by means of nothing but physical motions--and you'll learn that man's mind is the root of all the goods produced and of all the wealth that has ever existed on earth.

"But you say that money is made by the strong at the expense of the weak? What strength do you mean? It is not the strength of guns or muscles. Wealth is the product of man's capacity to think. Then is money made by the man who invents a motor at the expense of those who did not invent it? Is money made by the intelligent at the expense of the fools? By the able at the expense of the incompetent? By the ambitious at the expense of the lazy? Money is made--before it can be looted or mooched--made by the effort of every honest man, each to the extent of his ability. An honest man is one who knows that he can't consume more than he has produced.'

"To trade by means of money is the code of the men of good will. Money rests on the axiom that every man is the owner of his mind and his effort. Money allows no power to prescribe the value of your effort except the voluntary choice of the man who is willing to trade you his effort in return. Money permits you to obtain for your goods and your labor that which they are worth to the men who buy them, but no more. Money permits no deals except those to mutual benefit by the unforced judgment of the traders. Money demands of you the recognition that men must work for their own benefit, not for their own injury, for their gain, not their loss--the recognition that they are not beasts of burden, born to carry the weight of your misery--that you must offer them values, not wounds--that the common bond among men is not the exchange of suffering, but the exchange of goods. Money demands that you sell, not your weakness to men's stupidity, but your talent to their reason; it demands that you buy, not the shoddiest they offer, but the best that your money can find. And when men live by trade--with reason, not force, as their final arbiter--it is the best product that wins, the best performance, the man of best judgment and highest ability--and the degree of a man's productiveness is the degree of his reward. This is the code of existence whose tool and symbol is money. Is this what you consider evil?

"But money is only a tool. It will take

Re:Fire Sale

[malkavian]

Lawyers are not the guardians of our ethics, and I don't believe they ever state that it's their intention to be either.
Lawyers are ,first and foremost, people. Their ethics vary, and they bind themselves to their own ethical codes.
Their first responsibility is not to ethics, it's to their client and the law. But the law being what it is, is open to interpretation (thus we have lawyers). We don't have a system of justice (though that does sometimes happen), we have a system of law. That's interpreted through a filter of the Lawyers' and Judges' ethical codes (with input from a Jury), with the result being the judgements.

The point I was aiming for wasn't to say Lawyers are all bloodsuckers (they're not), or that all companies are completely unethical (just that some are, and if the rewards are suitably large, it becomes increasingly profitable to engage in that behaviour).

The big problem is that you can't legislate ethics, and can't have a workable system of law that is tied down tight. At some point you need to trust the individuals to "do the right thing" and adhere to the spirit in which things are meant. The problem these days is that there is an increasing amount of people who see gain at the expense of everything else, and are willing to sacrifice anyone or anything to get their way. These people frequently find their way to the heads of companies (by destroying anyone in their paths), and just carrying on from there.
I believe a lot of Japanese Law revolves around the concept of dealing in honour. Loss of honour is a devastating thing. A little more of that over here would be nice.

Re:Fire Sale

[Anonymous Coward]

JG Wentworth. Period. (Mr. J. G. "I take your money from you and you gladly give it to me" Wentworth)

They pay you $10,000 now, because "It's my money, and I want it now!". This is of course if you have a rock solid fixed monthly payment to you, due to whatever reasons.

Then, they collect your monthly payments to the merry tune of, say, $30,000 or higher. Not too bad, for JGW. A steaming pile of shit for you. But then again, you wanted it all now, instead of waiting.

There are a few other companies that do this very same scheme, but with lawsuits for various reasons. Again, your case has to be pretty much air tight before they will even look at you. And, you will loose your shirt in the "convenience" of the process.

IMHO, people that do this are on par with (or maybe worse than) people that charge 1200% or higher interest for payday "loans".

Re:Fire Sale

[tmosley]

You mean like our government?

So what's the big deal?

[Guido del Confuso]

According to the article, they only invest in cases that are pretty much a surefire win for the plaintiff. This makes sense, because if they're in it to make money, then cases that are likely to be questionable are a bad investment.

Seems to me that they're actually doing a public service, by allowing little guys who can't afford to take on big corporations who have clearly done them wrong to proceed with a potentially expensive lawsuit. No longer can the party with deeper pockets simply fight a war of attrition and hope to run the other guy dry. If the plaintiff ends up winning he gets more than he would have gotten had he simply given up, and if somebody else makes a buck off it as well, then so much the better.

Re:So what's the big deal?

[Jurily]

Seems to me that they're actually doing a public service, by allowing little guys who can't afford to take on big corporations who have clearly done them wrong to proceed with a potentially expensive lawsuit.

They're solving a problem that shouldn't exist in the first place: the legal system is a capitalist enterprise, with heavy price fixing by the lawyer community.

Oh, and a perverted enough legal system that lawyer skill actually matters in a case.

Re:So what's the big deal?

[Guido del Confuso]

Even accepting your statement about what is or isn't the problem with the legal system, it is the way it is and that's not going to change in the near future. Is your proposed solution simply not to solve the problem?

And of course the skill of the lawyers matters. It has always mattered. That's why we don't let just anybody be a lawyer. In case you didn't realize, being an effective lawyer requires a great deal of skill. The ability to analyze a case, compare points of law between present and past cases, and present a compelling argument are all talents that are learned. As much as you would like to believe that the facts are always completely self evident and are the only thing that should matter, that's just not the case. If it were, everybody would have exactly the same political opinion about everything. Or would you say that our political system so perverted that leadership skill actually matters?

Re:So what's the big deal?

[Jurily]

Is your proposed solution simply not to solve the problem?

My proposed solution:

1. abolish legally binding precedent. The accepted interpretation of a law should be a consensus among the legal community, not a decision of one moron 150 years ago.
2. Hire someone competent to rewrite the laws, aiming for clarity and precision.
3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.
3. Make the up to date text of every law easily accessible and searchable by anyone.
4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation.
5. Arguments should be based on merit, not qualifications and the overuse of jargon.

I'm sure there's more we could do, but these should solve the big problems.

Re:So what's the big deal?

[Anonymous Coward]

Your proposed solutions do not make sense.

This is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense!

Re:So what's the big deal?

[Marcika]

Is your proposed solution simply not to solve the problem?

My proposed solution:

1. abolish legally binding precedent. The accepted interpretation of a law should be a consensus among the legal community, not a decision of one moron 150 years ago. 2. Hire someone competent to rewrite the laws, aiming for clarity and precision. 3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch. 3. Make the up to date text of every law easily accessible and searchable by anyone. 4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation. 5. Arguments should be based on merit, not qualifications and the overuse of jargon.

I'm sure there's more we could do, but these should solve the big problems.

All your points pretty much described a conversion from the Common Law system as it is practiced in the UK and its former colonies (US, India, Pakistan, Oz etc) to the Civil Law system that has been introduced practically everywhere else and has been used since the times of Hammurabi and the Romans.

However, the problem is that such a conversion cannot happen while there is a large establishment built on it - the judges would have to re-learn, the lawyers would have to re-learn, the legislators would have a gargantuan task of creating a whole corpus of laws without bad loopholes... It would only happen after a revolution. (The German-style civil law was introduced in China, Japan and Korea in the early 20th century, but the power situation were very different from the status quo in the US today...)

Re:So what's the big deal?

[Anonymous Coward]

Great, I for one, welcome our new legal system arms race overlords.
[quits the country]

Re:So what's the big deal?

[psmears]

3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.

3. Make the up to date text of every law easily accessible and searchable by anyone.

This exists (for both of your item 3s :-), for the UK at least...

Re:So what's the big deal?

[Jurily]

All your points pretty much described a conversion from the Common Law system as it is practiced in the UK and its former colonies (US, India, Pakistan, Oz etc) to the Civil Law system that has been introduced practically everywhere else and has been used since the times of Hammurabi and the Romans.

I was actually describing an idealized version of the Hungarian system. The real one has its flaws, of course, like the overuse of references. The whole thing looks like a wiki on paper. And the distorting of old laws for new situations happens here as well.

Re:So what's the big deal?

[iserlohn]

Those that forget history are doomed to repeat it. This is part of the problem that "Precedent" solves in Common Law jurisdictions. If every judge interpreted law without "Precedence" as a guide, then you have a problem with consistency.

The other part of the problem is that no law can cover every conceivable situation. Sometimes bad laws are made, that's the reason that Jurisprudence is importance. In Common Law countries, it is a flexible system that allow lawmakers to make laws which are applied to specific situations by the judicial system.

In any case, the problem with inaccessible law is not specific to the Common Law, there is a lot of statutes which are equally hard to understand and apply.

A more realistic solution would be to introduce a summary of the existing legal situation on common law and statutes every year from the government that is brief and simple to understand but detailed enough to be useful. This should be accessible to everyone, and the relevant case law around this published and available on the Internet for free.

Basic legal education should be mandatory at the high school stage. Courts should be simplified so that technicalities are kept to a minimum.

Re:So what's the big deal?

[JoeMerchant]

Surefire win for the plaintiff does not mean that the plaintiff's complaint is just, true, or morally upstanding. It just means that prior plaintiffs with the same situation have done well in the same venues. I see a parallel to the American phenomenon of two drug stores on every corner - if the first one makes it, it can be studied and shown that another one will also survive in the same place - not that that's the best place to put a new store, just the lowest risk.

Re:So what's the big deal?

[pacinpm]

6. Make sure all set of laws (all of them) weights no more than 200KB. If you want to introduce new law which will cross the limit than you have to remove older one.

Re:So what's the big deal?

[Anonymous Coward]

Sometimes bad laws are made

And that's what we're complaining about here. By reducing the need for a judge to solve the Sorities paradox for every case (see also: Miller), it produces an environment where people can know, in advance, that if they do X, they will/won't be arrested.

Re:So what's the big deal?

[sjames]

If justice requires rounding up investors, then the society of laws is already on it's deathbed. It also does a great injustice to anyone who probably should prevail but is not certain to by creating a legal services bubble. Just like the real estate bubble, this will likely drive up the costs of legal services. There are very good reasons such practices are generally considered unethical and in many legal systems, actually criminal.

It also has the unfortunate effect of encouraging 'sure thing' lawsuits that should NOT prevail. For example, the RIAA threaten and settle model. They are sure to get many settlements (since they demand less than the cost to even begin fighting the suits).

Re:So what's the big deal?

[Maximum Prophet]

It's interesting that after the US helps rebuild a country, we give it a better constitution and legal system than what we have. This is how it should be, but it's obvious that we should backport the best of the new legal systems to our own.

This doesn't happen of course, because vested interests are making money from the current systems. If the inefficiencies are fixed, they might have to find a new job. To quote the movie "Risky Business", "You don't f*ck with a man's livelihood." People will fight you tooth and nail, and even try to kill you if you try to interfere with their way of life. (No matter how good or bad that way of life is, they want it to remain the same)

Re:So what's the big deal?

[swillden]

3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch. 3. Make the up to date text of every law easily accessible and searchable by anyone. [...] 5. Arguments should be based on merit, not qualifications and the overuse of jargon.

These three, at least. are already the case in the US, at both federal and state level. Your second 3 is not yet implemented by all counties and municipalities, but they're getting there. As for your first 3, while changes in statutes are passed as "diffs" by the legislature, generally, the patches are applied after they're passed, and the up-to-date version of the law includes a footnote that it was changed and on what date, but the text you read is the "patched-up" version.

I do think it would be very cool if legislators adopted source code management tools to manage the legal code. I think it would work very well, and would make the whole process much more visible to everyone. Imagine github for the legal code!

Hmm... Maybe I should download my state laws and publish them via github. Hmm.

Re:So what's the big deal?

[swillden]

Doh! Sorry for not fixing up the formatting in your text. It seems like the slashdot "quote" feature used to work better than it does...

Re:So what's the big deal?

[swillden]

see also: Miller

Which one?

Re:So what's the big deal?

[Taylor123456789]

Jurily, you should learn more about our legal system. It is the product of 2000 years of the best legal minds of our civilization.

1. You cannot abolish precedent. First, they are not made by "morons". Second, most precedent is recent. The courts have a heirarchy. Lower courts must follow upper courts, and the same court must follow its past decisions interpreting the same law before it.
2. The legislature does hire competent attorneys to write the actual text of the laws, and they do aim for clarity and precision.
3. All changes to statutes are incorporated into the text. However, not all situations are covered by the text, which is why we have judges to interpret the law to apply to specific situations. Not all specific situations are the same which is why it appears to be a patchwork of precedents. Courts can only interpret the law for the specific fact patterns that come before it.
3. (sic) The text is easily accessible and searchable by anyone. See Findlaw.com.
4. This is the purpose of Courts interpreting the law. For instance, does free speech apply to the internet? Under your rule, the answer would be "no", since there was no internet with the Constitution was written.
5. Agreed.

Re:So what's the big deal?

[Sique]

Do it as the bavarian judge did, when the new Buergerliches Gesetzbuch (Civil Code of Law) was introduced in 1900 in Germany.
A law inspector was impressed by the amount of decisions the judge had already based on the new Code of Law. And the judge just told him: "You know, beforehand I wrote down that I based my decision on the Pandects (Roman Law). Today I keep it in mind."

Re:So what's the big deal?

[Ihlosi]

It is the product of 2000 years of the best legal minds of our civilization.

I think the Romans would disagree.

You cannot abolish precedent.

Odd. There's no such thing as precedent in civil law systems, apparently it's not necessary for a legal system to function.

Second, most precedent is recent.

... unless it's not. And recent precedent may still be based on not-so-recent precedent.

The legislature does hire competent attorneys to write the actual text of the laws, and they do aim for clarity and precision.

i.e. they write laws so that other lawyers can understand them. It's kind of like letting engineers design the user interfaces of their own devices - you'll end up with devices that can only be operated by other engineers.

Re:So what's the big deal?

[Jurily]

For instance, does free speech apply to the internet? Under your rule, the answer would be "no", since there was no internet with the Constitution was written.

There was no First Amendment, either.

Re:So what's the big deal?

[Anonymous Coward]

My proposed solution:

1. abolish legally binding precedent. The accepted interpretation of a law should be a consensus among the legal community, not a decision of one moron 150 years ago.

Our current system of precedents assures that the accepted interpretation (sometimes that of a moron) is the consensus of the Legal community. Without binding precedent, each individual judge, or the same judge in two separate instances, can apply a law differently. Precedent instills certainty, and I think that outways your concern that morons may make binding law.

2. Hire someone competent to rewrite the laws, aiming for clarity and precision.

I think that would require rewriting our Constitution. Our founding document requires that laws be drafted solely by our legislators. You might be able to accomplish your goals with administrative code though. But in any case, your idea puts the power that should be distributed among our representatives into the hands of a single individual. I don't find that to be preferable.

3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.

I'm not sure what you're trying to get at with this, but in the criminal law, keeping a history of a laws progression assures us that individuals are not convicted of crimes which were not in effect at the time they were transgressed.

3. Make the up to date text of every law easily accessible and searchable by anyone.

In Florida we have this. And searching the federal laws is fairly easy as well. I agree that the administrative code is rather fragmented and hard to research when agency regulatory duties overlap.

4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation.

I'm afraid that "i'm sorry, there's no law applicable to that" is not a solution to most legal problems. The ability of a judge to apply our laws to new and novel legal issues is a strength of our legal system, not a weakness. Does it always work out, no, but it's preferable to an absence of law in most situations.

5. Arguments should be based on merit, not qualifications and the overuse of jargon.

What? I will say this, jargon exists because everyone knows how a judge will interpret it. It offers certainty. And certainty is good.

I'm sure there's more we could do, but these should solve the big problems.

Re:So what's the big deal?

[semiotec]

However, the problem is that such a conversion cannot happen while there is a large establishment built on it - the judges would have to re-learn, the lawyers would have to re-learn, the legislators would have a gargantuan task of creating a whole corpus of laws without bad loopholes... It would only happen after a revolution.

so the cost of educating lawyers and judges and rewriting laws is less than a revolution?

Re:So what's the big deal?

[Kirijini]

1. abolish legally binding precedent. The accepted interpretation of a law should be a consensus among the legal community, not a decision of one moron 150 years ago.

Old decisions, while they may be technically binding, are usually unpersuasive unless it accords to the general legal consensus within and without the jurisdiction. Publications like the restatements of the law (which are essentially just lists of contemporary legal principles, and not actually binding law anywhere, nor adopted by legislatures) are often much more persuasive to judges and justices than ancient decisions. In other words, courts will overturn ancient precedent when they think it's appropriate; lower courts will interpret ancient precedent (that hasn't been relied on by a higher court in that jurisdiction recently) as not to apply to "modern" circumstances, and higher courts often affirm those kinds of decisions (thus overturning the precedent for that circumstance or overturning it entirely)

Also, I want to point out that you're advocating judicial activism.

2. Hire someone competent [faqs.org] to rewrite the laws, aiming for clarity and precision.

The advantages and disadvantages of clear laws have been discussed elsewhere in the comments. I'll just add that flexibility in the law gives judges an opportunity to weigh normative values of what's just for the case before them when interpreting the law and making their decisions. This is especially important for plaintiffs overcoming, and defendants succeeding at, summary judgment motions.

3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.

What you're describing is the difference (in the US federal system) between the Statutes at Large and the United States Code. Statutes at large are the bills passed by Congress (and approved by the president), in chronological order. The United States Code is the law of the United States organized by subject. Commercial annotated versions by Westlaw and LexisNexis are kept up-to-date with amendments, administrative rules, decisions, etc. The normal USC is updated every six years.

3. Make the up to date text of every law easily accessible and searchable by anyone.

http://thomas.loc.gov/
http://uscode.house.gov/
http://www.loc.gov/law/
http://www.loc.gov/law/help/guide/states.php

There's more if you're willing to look at free services not provided by the government. There's even more if you're willing to look at commercial services from Westlaw, LexisNexis, and many others.

Also, the law libraries at public law schools are (usually) open to the public. You can even discuss, at great length, your research goals with law librarians, who will lend your their expertise for free.

The fact that legal research is so hard (and so important) is why legal researchers and lawyers get paid so much. (As a side note, another key reason lawyers get paid so much, and lawsuits are so expensive, is that good legal research resources are freaking expensive. Check out the going rate for westlaw or lexisnexis. One search (of any given complexity) of all US federal cases in Westlaw is something like 140 dollars. Viewing and printing the resulting cases usually has an attached fee as well. You can pay for time instead of by action - but you're charged per minute.)

4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation.

Very very often judges WILL admit that, and then proceed to torture existing laws to fi

Re:So what's the big deal?

[Anonymous Coward]

3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.

YANAL. Doing as you suggest here, lying to the court, is a serious offense. Do not assume judges are stupid. "Forgetting" to cite an amendment to a statute can get a lawyer heavily fined or even face disciplinary action.

Re:So what's the big deal?

[nomadic]

1. abolish legally binding precedent. The accepted interpretation of a law should be a consensus among the legal community, not a decision of one moron 150 years ago.

Precedent changes frequently, and is generally a consensus decision arrived at as judges look at how other judges ruled. And there are few, if any, precedents that were established 150 years ago, and any that are tend to be re-affirmed by a new look at the law periodically.

2. Hire someone competent to rewrite the laws, aiming for clarity and precision.

As an initial matter, clarity and precision are tradeoffs. The easier the law is to read, the less precise it is. And practically, rewriting laws would be a logistical nightmare. Rewriting laws means re-passing laws, and to do that to every law in the book would take countless years to make sure the new laws aren't introducing new loopholes. Do you have an example of a law that you feel is too vague? Because I've read a lot of statutes, and in general they tend to be fairly clear.

3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.

Alright, you are way off-base on this, changes to the law are always incorporated into the text. In fact, laws that amend statutes tend to even specify what section are modified and how they are. For example, look at Section 3this short bill.

3. Make the up to date text of every law easily accessible and searchable by anyone.

Pretty much already done. I don't know of any state that doesn't have a searchable index of its statutes.

4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation.

Well the problem with that is people shouldn't be allowed to violate the law simply because they're doing it on the internet. If someone is committing fraud, then they're committing fraud, just because they're doing it via e-mail doesn't mean they should escape liability.

5. Arguments should be based on merit, not qualifications and the overuse of jargon.

I'm not sure what you mean by this. Lawsuits are always supposed to be judged on merit. Unfortunately not all of them are, but this isn't because of some failure of the law, it's part of the human equation, and you're not going to fix that. As for qualifications I am also not sure what you mean; lawyers need to meet certain minimal qualifications, but after that their arguments are judged, not their background. An Ivy League law grad is in the same position as a fourth-tier law grad if they've both passed the bar.

Re:So what's the big deal?

[uncreativeslashnick]

My understanding from speaking with people who actually have practiced in both systems is that there really isn't much practical difference between a common law and a civil law system. In both cases, judges and attorneys look to previous cases with similar facts for guidance of what to do in present cases. The difference is the common law system pays greater lip service to following previous decisions, while still retaining almost full ability to not rely on them if it so chooses.

If you think about it, it really does make some sense - if you're a business trying to figure out how a law applies to your case, regardless of whether you're a civil law or common law system, wouldn't you look to what judges, juries, and officials have done in the past in similar circumstances?

I maintain that most of the hate directed toward lawyers and the legal system comes from 1) lack of understanding and 2) the few ridiculous fringe cases that make news but really don't represent the vast majority of legal work product

Re:So what's the big deal?

[nomadic]

It's interesting that after the US helps rebuild a country, we give it a better constitution and legal system than what we have. This is how it should be, but it's obvious that we should backport the best of the new legal systems to our own.

I reject the idea that the Civil Law system is "better" than the Common Law. I note that Common Law countries tend to, and have always tended to, have better economies than Civil Law ones.

Re:So what's the big deal?

[Anonymous Coward]

I'm going to take a Marxist devil advocate view here:

Take a look at a lot of our mala prohibita (as opposed to mala in se, or laws that are there for obvious reasons like murder or rape) laws:

A good number of them are there to protect the interests who is in charge, or has the ear of who is in charge: From the marijuana pograms, to the destruction of street cars making autos the only viable means of transportation in the US, you can see how laws are written almost solely to support who is in charge and shore their interests up.

Companies don't spend millions to billions lobbying Congress or international bodies for just PR reasons; they do it in hops of getting an ear and a sympathetic official who will champion their cause and pass laws that benefit them financially.

Re:So what's the big deal?

[Cassander]

I strongly agree with most of what you say, but I have a nitpick:

4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation.

I can't think of a single nasty thing you can do "on the Internet" that isn't already covered under existing laws for meatspace. We don't need separate (and in present practice unequal) laws for crimes that happen to take place via the Internet.

I do agree with your premise that we shouldn't twist weird unrelated laws into place to cover novel situations, I just think the Internet is a bad example.
   

Re:So what's the big deal?

[DamienNightbane]

The revolution has the benefit of eliminating the cancerous elements in the previous system that would be resistant to change.

Re:So what's the big deal?

[Guido del Confuso]

And replacing them with cancerous elements in the new system that are in favor of change merely for its own sake, regardless of the effect it has.

Re:So what's the big deal?

[Guido del Confuso]

If justice requires rounding up investors, then the society of laws is already on it's deathbed.

That doesn't follow. Participating in the legal system has always had a price, and sometimes people cannot afford to get the justice they deserve. That is a fact of life, and has always been the case. It's not necessarily a bad thing, because it also prevents a lot of frivolous lawsuits for trivial sums (there is, of course, a venue for low value lawsuits--small claims court--but there, since you cannot hire a lawyer to represent you, you must pay with your time). If anyone could proceed with a major lawsuit for free, the system would be choked with people hoping to squeeze a dime out of anybody with money.

It also does a great injustice to anyone who probably should prevail but is not certain to by creating a legal services bubble.

Such people aren't affected by this. So they're really no worse off than they were before.

It also has the unfortunate effect of encouraging 'sure thing' lawsuits that should NOT prevail. For example, the RIAA threaten and settle model. They are sure to get many settlements (since they demand less than the cost to even begin fighting the suits).

RIAA doesn't need this. They have deep pockets. And if they're really making less money through settlement than it would cost to fight the lawsuit, then they're not likely to get any investors now, are they? The only reason to invest in a lawsuit would be with the hope of making a profit through either a large settlement or judgment.

But the people who COULD use this are those who want to, say, countersue RIAA for harassment, or filing false claims. Normally, RIAA could just weather the storm and outlast their opponents, who have limited resources. But faced with the proposition of a lawsuit that could potentially drag on and cost them serious money, they're more likely to simply settle and be done with it, especially if the merits of the case weigh strongly against them.

Re:So what's the big deal?

[LonghornXtreme]

IANAL.

My responses:

1) You can't abolish legally binding precedent in America. Without it, you lose your incorporated rights from the Bill of Rights. You'd also instantaneously make most of the US Government unconstitutional. Go read Marbury v. Madison. Judicial review is an important part of our system. How the hell would you get a 'consensus' of the legal community without the current court system of trial court to intermediate court to court of last resort? So Texas and California should no longer have their own laws and be forced to come under a single Federal law? What about the Federalism (that means states rights, not stronger fed power) that's built in to the Constitution? What about letting cases percolate over time in the system so when the high court finally reviews them, they can make an educated policy decision? Many times the 'moron's' decision 150 years ago is modified ad nauseum. Some very important ones stay around;

2) Hire someone competent? HAHAHAHA. What makes you think that the "competent" person wouldn't be subject to the same difficulties in drafting law, or be subject to heavy-handed lobbyists? Law is like sausage, you never want to watch it being made, but it usually turns out ok.

3) I don't know about what laws you're looking at, but finding the current law in statutory or regulation form couldn't be easier. It's almost all on the internet. The amendments are listed because it lets the attorney determine what law was current AT THE TIME OF THE EVENT OR OCCURRENCE IN QUESTION. See, our Constitution has this pesky no ex post facto laws clause... meaning most cases are tried under the law at the time of the event causing the suit. Frankly, I'd say that the US legal system is one of, if not the most organized creatures on the planet. And it's all a few click away in search engines that make Google blush: LexisNexis and Westlaw. (not free though)

4) Laws aren't exclusive... when judge application of law turns out wonky... we almost always get the case overridden by the legislature. Remember, case-law fills in the gaps of the legislature's text. I.e. the judge can fill in the small details, the fact nuances, and unexpected applications... and if the legislature doesn't like the result, they can just amend the law. Checks and balances. Even if there's no law on point, you have to determine whether the novel conduct was legal AT THE TIME IT OCCURRED. Meaning that if there were no laws on point then, you have to determine whether it was legal by twisting and contorting (heh. torting) the then existing laws.

5) The trend in law is to not use jargon; briefs written by modern attorneys that didn't go to a snobby school are typically well organized and written mostly in layman's terms. Latin is kept to a minimum i.e. say 'claim preclusion' instead of res judicata. Both mean the same thing to an attorney, but it's also easier for the layman to pick up.

Is the system perfect? Hell no. But I'd stay in a common-law system over a civil law system any day. You want to give judges even more power? Fucking nuts. Adversarial is better than inquisitorial.

We'd have to have a complete revolution in order for your proposed changes to come about.

Re:So what's the big deal?

[Anonymous Coward]

Is your proposed solution simply not to solve the problem?

My proposed solution:

1. abolish legally binding precedent. The accepted interpretation of a law should be a consensus among the legal community, not a decision of one moron 150 years ago.
2. Hire someone competent to rewrite the laws, aiming for clarity and precision.
3. Law should be treated like software: any and all changes should be incorporated into the text, not distributed as amendments. The current legal system looks like Linux 0.01 with all the patches distributed separately up to 2.6.30, and you can win a case by confusing the judge and your opponent into forgetting a critical patch.
3. Make the up to date text of every law easily accessible and searchable by anyone.
4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws fo fit the new situation.
5. Arguments should be based on merit, not qualifications and the overuse of jargon.

I'm sure there's more we could do, but these should solve the big problems.

1. No precedent is binding forever and a day. In a common law jurisdiction the highest court of a jurisdiction can and will toss out old and incorrect interpretations of laws. It's only lower courts who are bound to interpretations strictly.

2. That's the job of judges and legislators and frankly judges do a very good job of it much of the time.

3. ? Amended versions with all previous amendments included seamlessly are usually released. The issue is, you need the amendments known so that (a) legislators can VOTE on amendments and (b) when the law changes people can known what it was on any particular day, so that all legislation is not automatically retroactive.

4. There is a big difference between torturing existing laws and applying the principle of existing laws to a new situation.

5. In my experience, they are.

Re:So what's the big deal?

[DamienNightbane]

Not if we use enough chemo the first time.

Re:So what's the big deal?

[swillden]

I do think it would be very cool if legislators adopted source code management tools to manage the legal code. I think it would work very well, and would make the whole process much more visible to everyone. Imagine github for the legal code!

Hmm... Maybe I should download my state laws and publish them via github. Hmm.

So, typing the above inspired me to go do it.

I put the Utah and United States codes in repositories on github. Further, I have a cron job that re-downloads the current statutes daily, commits any changes and pushes them to the github repos.

Now I can easily tell when the law changes, and what changed, and so can anyone else who cares to watch my repositories. I wish there were an easy way to go grab older versions of the laws, but at least I'll have a change history going forward. I'm going to be interested to see what it looks like in a few years.

Re:So what's the big deal?

[visible.frylock]

FWIW, this is according to wikipedia, http://en.wikipedia.org/wiki/Us_code:

By law, those titles of the United States Code that have not been enacted into positive law are "prima facie evidence"[2] of the law in effect. The United States Statutes at Large remains the ultimate authority. If a dispute arises as to the accuracy or completeness of the codification of an unenacted title, the courts will turn to the language in the United States Statutes at Large. Where a title has been enacted into positive law, however, a court may neither permit nor require proof of the underlying original statutes.[3] The distinction between enacted and unenacted titles is largely academic because the Code is nearly always accurate. The United States Code is routinely cited by the Supreme Court and other federal courts without mentioning this theoretical caveat. On a day-to-day basis, very few lawyers cross-reference the Code to the Statutes at Large.
 
The authority for the material in the United States Code comes from its enactment through the legislative process and not from its presentation in the Code. For example, the United States Code inadvertently omitted 12 U.S.C. § 92 for decades, even after Congress amended it in 1982. In its 1993 ruling in U.S. National Bank of Oregon v. Independent Insurance Agents of America, the Supreme Court ruled that section 92 was still valid law.[4]
 
The LRC continues the process of revising, updating, and restating the existing body of statutory law in codified form. As the LRC completes particular areas of the law, it proposes that the Congress enact those titles of the Code as "positive law". If a particular title of the United States Code is enacted into law, the enactment repeals all previous enactments on the subject (including those found in the Statutes at Large), thereby making that title of the United States Code "legal evidence"[5] of the law in force.

United States Code downloads:
http://uscode.house.gov/download/download.shtml

But don't get me wrong, I'm not going out on a limb here to defend our law or legal system. Our legal system still sucks. Not as much as many other places, but sucks nonetheless.

Re:So what's the big deal?

[Anonymous Coward]

There's no such thing as precedent in civil law systems

You misunderstand civil law systems then.

Firstly, when dealing with civil law you are dealing exclusively with private law. Public law (e.g. criminal law) systems in most civil law countries operate very much like the English system in general. This is has been an explicit goal of e.g. the Council of Europe and OSCE since their foundations after the second world war, and was in part driven by the goal of de-Nazification and de-Communization of the public law systems that were strikingly different. The major differences in public law relate to the structure of the pre-trial investigation of major crimes; in systems closely tied to English law this is generally done by an indictment laid down a pre-trial hearing or by a grand jury, whereas in many modern systems professional judges evaluate whether there is a case for the prosecution sufficient to warrant a full trial.

Returning to civil law, there are several different families of civil law (the Code Napoleon (mainly in Quebec and Louisiana), the more modernized French civil code, the modern Italian civil code, the modern civil codes of the former Portugese empire, the German family of BGB-based civil codes, and the Scandinavian civil system. There are Franco-German hybrids in much of Central Europe and the non-Sharia former Iron Curtain countries, with some Scandinavian law imported into FI/EE/LV/LT. Most of the systems of private law on the eastern edge of the Eurasian supercontinent are based on the German system; most of the systems of private law in South America and the non-British-Commonwealth, non-US-protectorate Pacific Islands is based on the modern French system.

The last is strikingly different from all the other systems in important ways, largely because it evolved with little influence from systems of law originating from the Roman Empire, and it survived the major legal upheavals of the 19th century such as the promulgation of Napoleonic law throughout the French Empire and the confederation of German principalities and the codification movement that grew up in that environment. In particular, the Scandinavian system came late to the idea of codification, and retains a substantial amount of traditional law that somewhat resembles the structure of common law.

The general strands of commonality of all the other civil law systems, however, are:

-- full statutory codification of private law with respect to contracts, real estate, tort, and so forth, with regular updates performed by a legislative body in cooperation with professional associations of legal professionals; the updates are not merely for governmental policy reasons or efficiency in the administration of justice, they also are a formal system for binding courts to decisions arrived at in legal proceedings (i.e., a form of "precedent")

-- complete reliance by all parties on the codified version of the law at the first instance. A goal of the codification movement was to avoid the need to refer to previous cases in the vast majority of cases by setting out the rules clearly, consistently and fully in statute. A secondary goal was to use part time judges as an efficiency measure, and relax the need for these judges to be au fait with how to deal with arguments based in case law. In English private law, this would be similar to part time magistrates' courts, or specialist court that dealt in statutory matters exclusively and would return matters such as procedure or arguments based in case law to a regular court on the grounds that adjuticating such matters is ultra vires.

-- easy access to an appeals court which can resolve any issues that could not be settled by exclusive reliance upon the civil code. This would be similar to a district court in many English systems -- professional full-time judges who would consider arguments based on instruments other than the civil code (typically ranging from case law, to foreign l

Re:So what's the big deal?

[sjames]

That doesn't follow. Participating in the legal system has always had a price, and sometimes people cannot afford to get the justice they deserve. That is a fact of life, and has always been the case. It's not necessarily a bad thing, because it also prevents a lot of frivolous lawsuits for trivial sums (there is, of course, a venue for low value lawsuits--small claims court--but there, since you cannot hire a lawyer to represent you, you must pay with your time). If anyone could proceed with a major lawsuit for free, the system would be choked with people hoping to squeeze a dime out of anybody with money.

So 'for all' was never intended to include the poor or indigent? Note that I never claimed that legal services should be free, just that it shouldn't require investors to cover the costs. Supposedly, lawyers are officers of the court and so legally bound to head off the frivolous and trivial lawsuits themselves. They are SUPPOSED to be sanctioned if they fail to do so.

Such people aren't affected by this. So they're really no worse off than they were before.

Sure they are. Bubbles tend to raise costs. They might have been able to afford justice if not for inflated prices, but unless they're practically a sure thing, they won't be able to attract 'investors'.

Re:So what's the big deal?

[epcornell]

You're right. Not only do we have to live with the decision of a small group of people (often one person) a long time ago, inevitably decisions are influenced by the particular facts of a case. Indeed, judges don't have the mandate to decide binding points of law, as they only have the power to decide individual cases. Why we then take these interpretations as binding precedent befuddles me.

There comes a point where, "in theory", information is accessible, but the barriers to access are so steep that it really isn't. The insanity of not incorporating amendments into the main body of text, given today's technology, is mind-boggling. Happens not only with the law but a lot of other publicly filed documents. Time and expense aside, you're right in that it opens up the system to abuse.

Re:So what's the big deal?

[Guido del Confuso]

So 'for all' was never intended to include the poor or indigent?

That's not what I said. I said that in some cases, some people will not be able to afford to litigate cases they could probably win. Having these sort of investors helps to rectify that situation.

Note that I never claimed that legal services should be free, just that it shouldn't require investors to cover the costs.

In most cases, it doesn't. In small claims court, you can't have a lawyer. And in lawsuits that involve great sums of money, you generally can't afford NOT to have the best legal representation that you can afford. As a litigant, you often have the option of proceeding pro se, or hiring much cheaper legal counsel to represent you. But this is generally accepted to be a false savings. And if you artificially limit the price of legal representation, you also artificially limit the quality. Simple economics.

Supposedly, lawyers are officers of the court and so legally bound to head off the frivolous and trivial lawsuits themselves. They are SUPPOSED to be sanctioned if they fail to do so.

They do. That's one reason why you're required to have a lawyer represent you in lawsuits in Federal court. And a natural result of having good legal representation cost as much as it does is that the frivolous cases that have no chance of winning tend not to be brought. Also, most lawyers do not want to have their reputations sullied by bringing numerous meritless cases, thereby potentially opening themselves up to such sanctions.

Sure they are. Bubbles tend to raise costs. They might have been able to afford justice if not for inflated prices, but unless they're practically a sure thing, they won't be able to attract 'investors'.

You could also reason that this will bring down the cost of legal representation, as large corporations with bottomless war chests are no longer able to simply pay for a team of lawyers to drag out the case until the plaintiff runs out of money. It will end up being much cheaper to simply settle the case quickly. That reduces the demand for legal services, thereby reducing the price of same.

Re:So what's the big deal?

[sjames]

That's not what I said. I said that in some cases, some people will not be able to afford to litigate cases they could probably win. Having these sort of investors helps to rectify that situation.

Unless the people who would almost certainly win is a defendant.

In most cases, it doesn't. In small claims court, you can't have a lawyer. And in lawsuits that involve great sums of money, you generally can't afford NOT to have the best legal representation that you can afford. As a litigant, you often have the option of proceeding pro se, or hiring much cheaper legal counsel to represent you. But this is generally accepted to be a false savings. And if you artificially limit the price of legal representation, you also artificially limit the quality. Simple economics.

If you have no money, it hardly matters that you want the best representation, you can't afford it. If you are a defendant, you don't even get the option to save up. If the cost of legal services is artificially limited, at least the quality of your opponent's representation is as artificially limited as yours is.

A big problem with legal 'investors' is that they will support plaintiffs but not defendants (where the best you can hope for is to be awarded legal expenses). Investors are also not going to be interested in cases where the remedy would be an injunction against the defendant. Yes, the investors will want to invest in sure things, but that's not the same as investing in cases with merit.

Of course, finally, investors will want a significant cut of any award. The worthy plaintiff would be far better off with affordable representation than with a system of investments in lawsuits.

Well...

[Anonymous Coward]

I'm not quite sure, but I want to say it's a good thing, since it in a small way reduces the problems for people who should win a case but do not due to lack of funding...

Unethical, but not illegal

[BadAnalogyGuy]

There are many things that people do as professions that are ethically questionable but undoubtedly legal. Not to harp on Maggie Sanger, but the ethics of abortion are intensely debated. However abortion remains legal in the U.S.A. Telemarketing is almost universally reviled, but people still make a living at it.

You would expect that ethics would take a big role in how the legal system is formulated, and for the most part you'd be right. But due to the creativity of human beings, the fruitful edges of legality and ethics can be sought out and exploited.

Re:Unethical, but not illegal

[Jurily]

You would expect that ethics would take a big role in how the legal system is formulated, and for the most part you'd be right.

I don't care about ethics. The problem is, the whole system is geared towards requiring lawyers to function. Unclear laws, obscure precedents, etc. Not to mention the special powers the lawyers' associations have, like automatic trust of a member judge.

In order to change this, laws should be written at least as unambiguous as RFC's, for starters.

Re:Unethical, but not illegal

[QuantumG]

The whole point is that this is illegal in most everywhere in the world.

Re:Unethical, but not illegal

[BadAnalogyGuy]

The whole point is that this is illegal in most everywhere in the world.

So is the death penalty, but I don't see how something illegal elsewhere makes an iota of difference here.

Re:Unethical, but not illegal

[MaskedSlacker]

This is however, very borderline. It is, if not illegal, very close, depending on the exact wording of the contracts, and the exact nature of the particular cases (and also depending on the jurisdiction).

Re:Unethical, but not illegal

[Guido del Confuso]

You can't make laws as clear as technical documents. That's a quixotic notion held by those who fail to appreciate that other people see things vastly different from how they do. The difference between an RFC and a law is that you can reasonably expect people to follow the RFC because it is in their own best interest to do so. A law, on the other hand, will always have an exception, a border case, or some other mitigating circumstance that will require interpretation. That is the job of the courts and lawyers.

Re:Unethical, but not illegal

[lordandmaker]

It's funny, I've never heard it this way round before.

Re:Unethical, but not illegal

[QuantumG]

Umm.. by "here" do you mean New Jersey? Cause that's the only place in the US that doesn't consider champertous contracts illegal (Bigelow v. Old Dominion Copper Mining & Smelting Co.)

Re:Unethical, but not illegal

[dword]

You can't make laws as clear as technical documents. That's a quixotic notion held by those who fail to appreciate that other people see things vastly different from how they do.

But isn't that the whole reason for which we have laws?

Re:Unethical, but not illegal

[Anonymous Coward]

I don't care about ethics

Oh good. So we'll not take your advice on how "...laws should be written..." then.

Re:Unethical, but not illegal

[Jurily]

You can't make laws as clear as technical documents.

Of course you can. Rule #1: Follow the intent, not the letter, And then make the intent as clear as humanly possible.

The difference between an RFC and a law is that you can reasonably expect people to follow the RFC because it is in their own best interest to do so.

Laws are not optional. They're protected by force and imposed on everyone in the area. And they have penalties, too.

Re:Unethical, but not illegal

[Jurily]

So is the death penalty

Most everywhere?

Re:Unethical, but not illegal

[Eivind]

I don't think so. What's legal and what's ethical are two completely different questions. Sometimes the answers to both questions are the same, and sometimes they're not.

I don't think they -should- be the same either, because there's a large set of actions that are unethical, yet the damage from laws against them would be significantly higher than the damage from the actions themselves, so it'd be a net loss for society to have such laws.

Re:Unethical, but not illegal

[AlXtreme]

Of course you can. Rule #1: Follow the intent, not the letter, And then make the intent as clear as humanly possible.

I don't know if making laws that vague would solve anything, instead it would probably make things much more worse. All those lawyers would have a field day in arguing that the intent of a law is something different to what the rest of us think, or use the intent of one law to negate a completely different law.

Things aren't perfect as they are, but the legal system isn't this complex merely due to the lawyers. All these laws have to be as clear as possible, in intent and letter, which is the task the legislative branch has when coming up with a law.

The problem is that each year many laws are added to the system (because the legislative branch has to keep up the act) but there is very little incentive to actually remove laws to simplify the system. The more laws there are in the system, the harder it will be for a layman to understand even a portion of these laws and the more ammunition lawyers have in the courtroom.

Or to continue the analogy, what if you had 100 non-deprecated RFC's that define a simple protocol like SMTP? You would get a whole branch of IT workers through whom you would have to dictate your emails, because the whole system is so complex.

Re:Unethical, but not illegal

[Chrisq]

This is however, very borderline. It is, if not illegal, very close, depending on the exact wording of the contracts, and the exact nature of the particular cases (and also depending on the jurisdiction).

You mean like Microsoft paying an "undisclosed sum" /to fund litigation/ .. cough .. for Unix licenses.

Re:Unethical, but not illegal

[jimicus]

Of course you can. Rule #1: Follow the intent, not the letter, And then make the intent as clear as humanly possible.

What a good idea.

Which is exactly why any half-decent judge interprets according to the spirit of the law.

Where a problem occurs is when the spirit isn't clear but the letter is - and the most obvious interpretation of the letter is pretty bad.

Myself, I think laws should have something akin to the preamble section in the GPL - a short paragraph which explains in clear English exactly what the law hopes (and doesn't hope) to achieve - in order to aid understanding the spirit.

Re:Unethical, but not illegal

[tygerstripes]

I have mod-points, but your PoV is so damnably immature, under-developed and ill-considered that I can't find a mod-category strong or chastising enough to express the uselessness of your post.

Not only are you obviously NAL, your dearth of other posts against this story demonstrate that you're probably not even an adult. Your whole commentary smacks of "someone should fix it to make it right, and then someone should enforce it with an absolute mandate."

Grow up. Study law. Study psychology, or sociology, or philosophy. Study anything that will open your eyes to the human condition and how best to cope with it as a society. Just please, understand that having an opinion is not the same as having something to contribute.

Re:Unethical, but not illegal

[Anonymous Coward]

You can make clearer laws than the present ones for sure.

Problem being, the status quo is perfect for powerful people: more lawyers means more loopholes found, and a judge who must choose between interpretations is more vulnerable to corruption.

Re:Unethical, but not illegal

[Anonymous Coward]

RFC has some precise definitions that allow such exceptions.

The device MUST implement X.
The device MUST either implement X or fall back gracefully to Y
The device MAY implement X. Presence of implementation of X is recognizable by Y.
The content of field X is undefined and subject for proprietary extensions. If the content is not recognized, the device should ignore it..

Law is a set of inclusive specs: whatever isn't forbidden, is allowed. Thus, if a case is not covered by law, it's no-case.

And border cases are precisely the reason of various injustices. They are a subject of personal interpretation of the judge, so guy X gets away with something harder and guy Y goes to prison for something lighter strictly because they were in the "border" area and their respective judges had some "gut feelings" about whether it is a crime or not. Borders should be defined strictly. If they are not, the law is faulty and needs to be fixed.

Besides, at least _some_ practices should be introduced, definitely.
- unified diffs to changes in laws. (Paragraph 1: "the word 'will' in paragraph 25 line 5 chapter XXIX tome III is to be replaced with the word 'won't'. Goddamnit, the lawmakers should be fired for publishing stuff like this as actual law.)
- one centralized, public, quickly accessible fully cross-referenced searchable source for _all_ laws. Including relevant precedents. With all the back revisions etc, repository style.
- url-like address for any law entry. Finding a referenced line can take half a hour in current style.
- strict list of priorities of laws. A quick and efficient process of resolving internal conflicts in law, without requiring plaintiffs presence. It cannot be that a government organization internal regulations overrides the Constitution.and you must obey unless you sue - you should just notify a proper body about the conflict and they should overturn the regulation within 7 days without your interaction.
- a strict list of keywords of invocation/revocation of privileges. It cannot be that the policeman asks two questions and your answer "yes" to one may be interpreted as waiving your constitutional right about which the second one is.
- FUD is evil. The law enforcement organs should be totally illegal to give false legal advice. Their job is to prevent violation of laws, and by telling the citizens falsehoods about their laws they operate strictly against their purpose. Any offers to the arrested should be considered valid legal contract offers, with equal consequences of failure to uphold it (you can sue a cop for failing to "help you out" in exchange for testimony and require all the punitive damages equal to your jail time)

Re:Unethical, but not illegal

[Anonymous Coward]

Some how I wouldn't be so content that the US is bundled along the Middle East, Northern Africa and China...

Re:Unethical, but not illegal

[noidentity]

The difference between an RFC and a law is that you can reasonably expect people to follow the RFC because it is in their own best interest to do so. A law, on the other hand, will always have an exception, a border case, or some other mitigating circumstance that will require interpretation. That is the job of the courts and lawyers.

That's the genius of Microsoft: they apply these same principles to things like RFCs and protocol specifications.

Re:Unethical, but not illegal

[NonSequor]

Have you heard the expression "your right to swing your fist ends where my face begins"? Well I imagine if that were put into law the process would go something like this:

Legislator 1:I want to ban people hitting other people's faces with their fists.

Legislator 2: What about a light tap with a closed fist as a sort of, "Go get 'em champ!" endearing sort of thing? Do you really think that should be illegal?

Legislator 1: Sure, I buy it. We could put an exemption for that.

Legislator 3: I'm more worried about people hitting other people in the face with things other than fists.

Legislator 1: Like what?

Legislator 3: Well this guy slammed a door on my brother's face and broke his nose.

Legislator 2: Ouch...

Legislator 1: Sure that should be illegal too.

Legislator 2: Wait, what if it wasn't on purpose? What if, like, you were holding a door open for someone and then slipped and slammed the door in their face?

Legislator 1: Well that wouldn't count.

Legislator 3: You would still be responsible for being clumsy.

Legislator 1: Yeah, I guess that makes sense. You should have to at least pay for medical bills or something, but it's not like we're going to lock people up in jail over that.

Legislator 2: What if it's a windy day and the wind blows the door closed and it breaks someone's nose and the guy thinks that it was you slamming the door?

Legislator 1: Well if it was really the wind and not you, then you aren't responsible.

Legislator 3: Wait, how do you prove it was the wind?

Legislator 1: Well... ...And so on and so forth.

The moral of this story is that we don't just throw out old laws because we don't want to go through the trouble of hashing out all of the minutia in them over again. The law is never going to be not complex, because the essential logic that it needs to express is complex.

So long as the concerns that motivated the original law are still essentially valid (which, of course, is not always true), then it's generally better to amend the existing law and build off the work that has already been done, rather than attempt to rewrite them completely.

The law has the difficult task of objectively resolving disputes with subjective elements. When you think about it, that's a problem roughly equivalent to Hard AI. Over many centuries, law has developed heuristics for dealing with this problem. If you take the time to learn about them, you'll find that although they don't produce justice with algorithmic certainty, they do tend to produce reasonable results more often than not.

Re:Unethical, but not illegal

[mh1997]

The problem is, the whole system is geared towards requiring lawyers to function. Unclear laws, obscure precedents, etc. Not to mention the special powers the lawyers' associations have, like automatic trust of a member judge.

With most politicians being lawyers, is it any wonder that they would write unclear laws with loopholes to exploit to benefit themselves and the "industry" they came from?

Re:Unethical, but not illegal

[selven]

Laws are not optional. They're protected by force and imposed on everyone in the area. And they have penalties, too.

He didn't say that it's in a company's best interest to break the law. He said that it's in their best interest to do a certain action which is legally dubious probably because it harms other people while simultaneously following the letter of the law. Thus, it is in their best interest to twist and tangle the law to meet their own interests. In a technical document, however, you want to get the result that the manufacturer intended, so you don't try to find loopholes in the technical document.

Re:Unethical, but not illegal

[swilver]

All of these examples however differ in just one thing. Intent. Did you intentionally break someone's nose or was it an accident?

The law therefore could simply state: intentionally breaking someone's nose is illegal.

Trying to extend the text of the law to provide a fail-safe method on how to prove intent is futile. It's not possible to establish intent without cooperation from the suspect. The most we can hope for is a good guess. I mean, I could take a swing at someone intending to stop just short of breaking their nose to give them a scare. If I stumble or the target makes a sudden move, you could have dozens of witnesses seeing me break someone's nose seemingly without cause, while it was never actually my intent.

Re:Unethical, but not illegal

[sjames]

True, but nobody is legally compelled to listen to a sales pitch or to be involved in an abortion.

Should anyone try in a similar way to not participate in the civil court system, the judge will practically rip the shirt from their back and give it to the plaintiff.

Lack of ethics in sales is harmful to society, but lack of ethics in the legal practice can actually unravel the fabric of society. IMHO, the courts and legislature are being quite careless about that currently.

Re:Unethical, but not illegal

[NonSequor]

That's what I meant when I said the law has to objectively resolve disputes with subjective components. Intent is subject to interpretation, and the law specifies mechanisms for testing for intent.

What is and isn't illegal is simply the first question. The second question is, how should mitigating factors be considered in answering the first question? The third question is, how is a violation punished? The fourth question is, to what extent should mitigating factors be considered in determining the intensity of punishment used?

A system that doesn't attempt to consider all elements of the case is tyranny.

So how do you weigh all of the pertinent considerations against each other? Is one of them always most important? Or maybe one of them should only be important when it crosses a certain threshold.

The whole point is that the legal system is an attempt by humans to establish methods for making good guesses which take into account as many relevant factors as is possible. Since they're at best good guesses (and sometimes bad guesses) bad results do sometimes occur. However, it's better than the binary alternatives of either not punishing any crimes or punishing all suspects.

Re:Unethical, but not illegal

[Anonymous Coward]

Letting lawyer politicians write laws is like letting the convicts design their own prison...

Re:Unethical, but not illegal

[Anonymous Coward]

sorry he meant all 1st world countries and most civilized places (Europe, japan, even most of south America and Russia), but hey its "the American way" to kill people so I'm sure you'll jump to its defense!

Re:Unethical, but not illegal

[priegog]

Sure you can make laws (almost) as clear as technical documents. In civil law systems (which according to wikipedia is the most prevalent one in the world) the outcome of a trial isn't up to a bunch of manipulable people (jury) or to a potentially corrupt judge. The laws are written as explicitly as possible and in most cases, it's pretty clear what the outcome in any lawsuit should be. Not saying it's a perfect system, but common law isn't the only (and arguably even the better) system out there, and laws CAN be pretty straightforward. Inferring the system is as it is because it couldn't possibly be done any better (or making up excuses for it) is precisely the reason common law prevailed in aglophone countries even though it shouldn't have when written law was introduced into the system.

Re:Unethical, but not illegal

[Burpmaster]

Myself, I think laws should have something akin to the preamble section in the GPL - a short paragraph which explains in clear English exactly what the law hopes (and doesn't hope) to achieve - in order to aid understanding the spirit.

Won't stop people who haven't read the preamble from making bogus claims about the intention of the law, just like they do with the GPL...

Re:Unethical, but not illegal

[Anonymous Coward]

I am in fact working on something like this as a hobby. A github style site for creating legislation, it is still in planning and VERY early coding stages but and opinions would be welcome on my site

http://jeff.jones.be/technology/projects/open-source-country/

Re:Unethical, but not illegal

[zotz]

First you need to decide whether equity or predictability is more important in your law.

all the best,

drew

Re:Unethical, but not illegal

[yachius]

Borders should be defined strictly. If they are not, the law is faulty and needs to be fixed.

That is precisely what happens when a Judge hands down a decision on a border case. That judgment becomes a precedent which is as good as law in a courtroom unless the previous judgment is overturned. There are too many possible border cases, consider V&T laws, custody battles,corporate fraud, etc...; situations where the human element introduces a mind boggling number of variables. Lawmaker cannot possibly define a law that covers every contingency. That is the Judges job.

Re:Unethical, but not illegal

[Chatterton]

In a technical document, however, you want to get the result that the manufacturer intended, so you don't try to find loopholes in the technical document.

Except if you are Microsoft who said that the last version of Excel support the ODF specifications. Yes they support it on the letter, but not the intent of the specification. ie: The specification doesn't define the namespace for storing the formulas, and they used another one than the one used by everyone else.

Re:Unethical, but not illegal

[mokus000]

. In a technical document, however, you want to get the result that the manufacturer intended, so you don't try to find loopholes in the technical document.

Unless you're Microsoft... *ducks*

Re:Unethical, but not illegal

[Anonymous Coward]

And Alaska, holy cow!

Re:Unethical, but not illegal

[jazcap]

...you can reasonably expect people to follow the RFC because it is in their own best interest to do so.

And for nearly any law, there will be a substantial class of people whose best interests will be served by finding *any possible loophole* to evade the law's intent. Such as, perhaps, laws against champerty.

Re:Unethical, but not illegal

[jazcap]

This comment is now banned by Apple: Fuck.

How unfortunate. I read and I obey.
Or perhaps I misunderstood your intent?

Re:Unethical, but not illegal

[plague3106]

The law therefore could simply state: intentionally breaking someone's nose is illegal.

Well, I guess there goes boxing and UFC.

If I stumble or the target makes a sudden move, you could have dozens of witnesses seeing me break someone's nose seemingly without cause, while it was never actually my intent.

You don't swing your fist at someone without intent to cause harm. I'd argue here your intent is irrelevent, you assaulted someone while being aggressive.

Re:Unethical, but not illegal

[Jurily]

You don't swing your fist at someone without intent to cause harm.

You do in boxing. If you do go in there aiming to break the opponent's nose, you also deserve the sentence for it.

Re:Unethical, but not illegal

[plague3106]

Irrelevent; judges WOULD read the preamble.

Re:Unethical, but not illegal

[plague3106]

Well if it's really that fucking important, maybe it should have been in the specs to begin with, don't ya think?

Re:Unethical, but not illegal

[Mister Whirly]

Microsoft ducks? Are those the new replacements for Clippy? What ever happened to the dog?

Re:Unethical, but not illegal

[plague3106]

Are you serious? You're trying to punch your opponent until they are unconscious to win the fight. Yes, they are trying to hurt each other... just within the confines of certain rules.

Re:Unethical, but not illegal

[rwiggers]

Maybe because a RFC is clear to you because you are a techie. Maybe the letter of the law is as clear to a lawyer as a RFC is for you? Do you happen to know all RFC's? If you do so, have you never got a border case in which there would be some discussion needed, or allow different people have different interpretations and different behaviour?
Even something like the C standard (I know, not a RFC) is full of ambiguities, that makes using C as a portable language somewhat a hard task...

Re:Unethical, but not illegal

[nomadic]

Myself, I think laws should have something akin to the preamble section in the GPL - a short paragraph which explains in clear English exactly what the law hopes (and doesn't hope) to achieve - in order to aid understanding the spirit.

They generally do.

Re:Unethical, but not illegal

[nomadic]

IMHO, the courts and legislature are being quite careless about that currently.

Do you have any concrete examples of this?

Re:Unethical, but not illegal

[jimicus]

I think this depends on the country in question's laws.

I do recall hearing about a country which decided that all future laws would be drafted in clear English in their entirety - but I can't recall what country this was and I'm having trouble finding it so I've no idea how successful this was.

Re:Unethical, but not illegal

[Schadrach]

I've swung a knife towards someone's throat (did not actually cut them in the process, thankfully) without intent to cause harm before, so watch it. There are always border cases and odd situations.

Re:Unethical, but not illegal

[nomadic]

I am going by American law, which is 99% of what is attacked here; generally you have a first section in each law that describes the intent behind the law.

Re:Unethical, but not illegal

[Anonymous Coward]

The law therefore could simply state: intentionally breaking someone's nose is illegal.

So what about a plastic surgeon who needs to break someones nose to fix it?

Re:Unethical, but not illegal

[ultranova]

You can't make laws as clear as technical documents.

Of course you can. Rule #1: Follow the intent, not the letter, And then make the intent as clear as humanly possible.

Oh goody. Rather than having complicated laws, we'll have judges settling cases by their gut feelings. That's such an improvement.

BTW. I have never once in my life read a clear technical document that was also complete. Oh sure, you can get the gist of it clear; but then you start nailing down corner cases, at which point it becomes a rat's nest of horrifying pedantry.

Laws are like program code: they are horrendously complicated, because each and every bugfix introduces more complexity, and you feel like you should just dump the whole mess and start over, but all you receive that way is code that's not been debugged yet. You think you can do better, fine: write me a Web browser that has feature parity with Firefox, has no bugs whatsoever, and has a small and elegant codebase, and then I'll consider it.

Re:Unethical, but not illegal

[nomadic]

intentionally breaking someone's nose is illegal.

You're still leaving room for way too many exceptions that the law as written is severely deficient. A doctor re-breaks someone's nose to reset it so it will heal better. He or she just committed a crime. What constitutes a break? A hairline fracture? What if a doctor does a bone biopsy on the bone in the nose?

What if I punch you but I'm not intending to break your nose? Is the intent required to break the nose, or just throw the punch? Boxers would really want to know that.

Re:Unethical, but not illegal

[stranger_to_himself]

The whole point is that the legal system is an attempt by humans to establish methods for making good guesses which take into account as many relevant factors as is possible. Since they're at best good guesses (and sometimes bad guesses) bad results do sometimes occur. However, it's better than the binary alternatives of either not punishing any crimes or punishing all suspects.

Further you can only really address most of these problems as they occur, hence the need to rely on precedent a lot of the time.

Re:Unethical, but not illegal

[Velska1]

Why isn't it in the specs? Did you know that M$ was complicit in creating the spec, and it was in their interest - as they see it - to make the spec nebulous.

Re:Unethical, but not illegal

[plague3106]

If that's what you think, back up your claim. Show me where others on the committee were complaining that MS was holding up the process purposefully.

Just stop it already; I'm tired of OSS jerkoffs blaming their failures on MS all the time.

Re:Unethical, but not illegal

[plague3106]

Were you performing a magic act, and this other person was in on it? If not, ya, I feel safe in assuming your intention was to cause harm. Even in boxing, where both people are choosing to enter the fight, they are attempting to harm each other. The OPs "edge case" is ridiculous, and without more information, so is yours.

Re:Unethical, but not illegal

[Velska1]

Exempting medical appliances from product liability as long as they're FDA-approved?

And, of course, no FDA employee has ever taken a kickback. Ever.

Re:Unethical, but not illegal

[Jane Q. Public]

If it isn't illegal, there is EVERY reason that it should be. Champerty is very clearly a "slippery slope".

Re:Unethical, but not illegal

[nomadic]

That's not a problem with the courts and/or legislative branch, that's a problem with the executive branch. And while I'm sure kickbacks happen, I think it would take a lot more than bribing one FDA employee to get something approved.

Re:Unethical, but not illegal

[a whoabot]

"Of course you can. Rule #1: Follow the intent, not the letter, And then make the intent as clear as humanly possible."

So then how do you determine the intent? From some piece of writing different from the law? Then why not just use that piece of writing as the law and follow it? Or do you determine the intent from the law itself? Then you are just following the letter of the law!

For example, you have a law which states that "One may not drive without his seatbelt safely fastened." Then you have a second piece of writing different from the law saying "When we said that one may not drive without his seatbelt safely fastened, we meant that one may not drive without a seatbelt safely fastened around himself. That is, not having a seatbelt is not an excuse." In this case, why not just use the latter piece of writing as the law? In fact, if it is what judges use to determine what the law actually is, then de facto it is the law!

But say there was no secondary writing. There was only the law and no other sources. Then how could you not but follow the letter of the law unless you just did not follow the law full stop? How could you infer some intent of the law different than what would be inferred from it? That's just a logical impossibility. If you are saying that the meaning of "One may not drive without his seatbelt safely fastened" is different than what the meaning of "One may not drive without his seatbelt safely fastened" is, then you are saying that the meaning of the sentence is different from the meaning of the sentence! That A is at once both A and not A. That's ridiculous.

Re:Unethical, but not illegal

[sparkymaster]

What is and isn't illegal is simply the first question. The second question is, how should mitigating factors be considered in answering the first question? The third question is, how is a violation punished? The fourth question is, to what extent should mitigating factors be considered in determining the intensity of punishment used?

Can't the secondary questions be the purpose of the judge? To, you know, judge the circumstances of the case within the "intent" of the law? For the others that said boxing, nose jobs and biopsies will be illegal. Um... the intent of boxing isn't to break noses, it is to win the match. The intent of a nose job is to fix a condition. The intent of a bone biopsy is to determine medical issues.

Re:Unethical, but not illegal

[Ailill]

Of course you can. Rule #1: Follow the intent, not the letter, And then make the intent as clear as humanly possible.

To use an old example of the difficulty in determining the "intent" of a law. Imagine you have 101 law makers. 50 are in favor of the proposed law and 50 are opposed. 1 legislature doesn't care but really wants new roads built for his home town. The 50 in favor cut a deal whereby he supports the law and they help him get his roads. Which "intent" is used to determine the intent of the law when a marginal case arises?

Re:Unethical, but not illegal

[Anonymous Coward]

That depends on what the meaning of "is" is.

Re:Unethical, but not illegal

[sjames]

TFA! No specific right to representation in a civil suit. Anyone can sue anyone for anything with practically no risk of sanctions no matter how frivolous. Legal representation can easily exceed a person's income.

Re:Unethical, but not illegal

[vertinox]

Laws are not optional. They're protected by force and imposed on everyone in the area. And they have penalties, too.

In reality laws are optional to society for the following reasons:

1. The people who pass them often ignore them when it applies to them.
2. The people who enforce them selectively enforce what they like or do not like.
3. The people who the laws were made for often don't even know about the laws or willfully choose to not follow them sometimes because they are impractical to follow.

Yes, laws are supposed to be followed all the time but sometimes political opinions, morality, and practicality gets in they way.

Like how the DOJ ignored the anti-trust laws because they have CEO friends. Like some police officers let people go for speeding because the driver was a cute girl. Like how its impractical for the average citizen to file his taxes correctly every year (heck the IRS doesn't expect you to fill it to the exact cent).

But sometimes ignoring the law can be a good thing. Like how some people in 3rd Reich sheltered Jews when it went against German law, or how the underground railroad helped Slaves escape when it was illegal to do so in Southern States.

See... Laws aren't always moral or practical to enforce. The problem we have today is that our legal system keeps building more laws that it makes criminals out of everyone and even lawyers are scratching their heads at what to do.

We need a body of government that job is to look at laws and throw them or ask congress to revise them. The supreme court is sort of supposed to do that but its too slow at the process.

We'd need an "anti-congress" whose role is to review legislation and destroy them by vote like how the new congress creates them by vote.

Its either that or in 200 years we'll have so many laws that our descendants will all have to lawyers just to step out of the house.

Patents on software...

[pieterh]

It relates because the business of software patents is very close to this. Patent litigation in the software sector is much higher than in any other sector and much of that litigation is speculative and funded by exactly the kind of VC TFA is talking about.

Yup

[Anonymous Coward]

It's cases like this where it shows most clearly that our legal system has little to do with justice.

Re:returns are well in excess of 20 percent per ye

[Guido del Confuso]

20% per year is not outrageously high. If a business makes 20% profit per year, it would be doing fairly well, but not spectacularly. The problem is with GUARANTEEING that rate of return to others. That's when it becomes fraud. But simply stating that you're making that much, especially when it's true, is perfectly legitimate.

Fmylife.com of the times

[Anonymous Coward]

http://en.wikipedia.org/wiki/Swynfen_will_case

Got promised 1.3mil to win a case, the first case I've run. Had sex with the hot beneficiary. Won the case. Didn't get paid. She married someone else and sued me for misconduct. My life sucks.

Re:I'll stick to betting on horses

[Bromskloss]

And I can make more than 20%

Really? That's great! I always thought that the odds people would offer you were so bad that you'd have to be extremely lucky to make even a small profit (in the long run of course). But that is not the case, you say? What about the efficient market argument, that if horse betting was such a golden opportunity, lots of people would exploit that until the odds were adjusted so that the opportunity vanished?

Re:DO NOT CLICK LINK

[Anonymous Coward]

You must be new here.

Re:returns are well in excess of 20 percent per ye

[Antique Geekmeister]

And even an idiot can have a good year in the lawsuit world. Like the stock world, you print the statistics that make you look best to encourage more investors, and you don't want to admit that if you role a fair dice 3 times, for 12.5 % of the people who do it it will win every time, and for 12.5% it will lose every time. You, as the salesmen for the investment services, make your money from the transaction fees (and the bribes and kickbacks ans shwag), not from the investors winning or losing.

The Sophomore Class

[westlake]

The trial attorney's primary asset is his experience in court - his ability to win cases.

But that makes it difficult to hit a bank for a loan.

So he - like generations of skilled craftsmen and professionals before him - seeks financing outside the normal banking system.

There is the side issue of collection from the client who isn't paying his bill. Corporate litigation at the highest level tends to more rather more work and expense than the collision at Third and Main.

Gah. Does the phrase "independent contractor" ring a bell with anyone here? Or are you all still living in the Dorm?

NEWSFLASH

[Anonymous Coward]

we're certainly beating the market

Lemonade stand beats the street. Fuck, when looking at the past 2 years, anyone who made $1 profit "BEAT THE STREET".

Re:I'll stick to betting on horses

[Big Hairy Ian]

Fortunately most people think its a mugs game which unless you know what you are doing it most certainly is. However all the information on how to pick your bets is already in the public domain. Just do the maths and make sure the betting system you use can sustain 19 losing bets in a row and still give you your required ROI % for each bet when the 20th bet comes in. If you go more than 20 bets without a winner then either even the FSM hates you or you are dumber than the average American president

Re:I'll stick to betting on horses

[hairyfeet]

Y'all want to know why you have so many losers at gambling? Because they try to force a bad hand. In the past I've sublimated my income playing poker and have seen it time and time again. I would know within the first 30 minutes if I was gonna get into a groove or not and I didn't bet decent until I knew whether the groove was there. Its like programming, where you get into the zone and everything just falls into place.

Where you get the big losers, and I've been happy to take their money time and time again, is when they simply refuse to accept they ain't gonna hit the groove. instead of doing as i would and simply walking away they will ALWAYS try to "force" their way into a streak, usually by throwing good money after bad because they are just sure they'll pick up the groove next round. but they never ever do.

That is how you can tell the good poker players from the losers. A good poker player when he sees that either he isn't gonna hit his stride or that he has lost the groove simply picks up his money and says "well boys, its been fun" and walks away. As long as the loser has money or access to credit he is just gonna keep pushing it hoping lady luck will stop by on the next round which of course she never does. So it really ain't brain surgery. it takes a little skill, a little luck, but most importantly it takes the ability to accept that not every night will be yours and to walk away when that bad night is upon you. You'd be surprised how many out there lose their shirts because they can't accept that simple fact.

Of course I meant SCO

[Chrisq]

I should have said:
You mean like Microsoft paying SCO an "undisclosed sum" /to fund litigation/ .. cough .. for Unix licenses.

Re:Of course I meant SCO

[Anonymous Coward]

Speaking of law, death penalties and SCO, how is Darl McBride bidding his time lately?

Re:I'll stick to betting on horses

[Big Hairy Ian]

Spot on! Another reason people lose big time is because they bet stupidly I know people who bet their whole salary as soon as they get it hoping to get lucky. Personally I don't believe in luck I try to get 1 bet in 3 (or better) right but the stakes I play at are so small compared to my overall pot that I can cope with 19 losers in a row.

Maybe this isn't so bad?

[rastoboy29]

We all bemoan how the non-moneyed are at the mercy of the wealthy in the legal system.  Perhaps "angel investors" in a legitimate case are not such a bad idea?

Re:I'll stick to betting on horses

[Bromskloss]

Fortunately most people think its a mugs game which unless you know what you are doing it most certainly is. However all the information on how to pick your bets is already in the public domain. Just do the maths and make sure the betting system you use can sustain 19 losing bets in a row and still give you your required ROI % for each bet when the 20th bet comes in.

But suppose a few people did the maths and bet accordingly. Wouldn't that drive the odds in a direction that made the profitability very small?

Blackwhite

[Tenebrarum]

When the process of legal shikanery yields better returns than investing in real world products then it is apparent that the our culture has run aground . . .

No, it's just the logical conclusion of a culture of worshipping money.

Begging your pardon; where's the dichotomy?

The consequences

[Technician]

As the US turns to heavy litigation, the targets flee. Start-ups consider greener pastures.

Want proof? The country that led the industrial revolution is now a service industry nation.

As consumer protection lawsuits pervail, industry leaves. Small planes, diving boards, vaccines, and other products are not made in the US simply because of litigation and the threat of litigation.

The risks to the nation are huge including massive trade defecits, collapse of the economy due to devalued hard currancy, and shortages of supplies in time of need as we depend on overseas manufacturing. The latest risk is the swine flu. Nobody in the US makes the vaccine. In a pandemic, demand in the home country may cut supplies off entirely as the limited capacity is used elsewhere. This is the result of runaway litigation.

I worked in a shop at one time where the owner refused to provide service to laywers. They were the second most likely bunch to not pay, or demand second and third services unpaid. Only on other group exceeded laywers in not paying for services.

Welcome to a litigious society.

Re:The consequences

[swilver]

I see it the same way. Legal services are just an economic drain on productive society. They cannot exist without the other making them similar to leeches. Having too much resources tied up in legal technicalities will eventually be a bad thing for your economy. Legal services are also something that is pretty hard to export, so they basically only hurt yourself not your "competitors".

Re:The consequences

[bradley13]

Our small company (based outside the US) was advised by our lawyer to never sell to a customer in the USA. Even if your company has no local presence beyond an accessible website, local courts will use the long arm statute to claim jurisdiction. It doesn't matter that your contract specifies the legal jurisdiction. It doesn't matter that you have no local presence. Local lawyer plus local judge = right-to-do-whatever-they-damn-well-please. And you know those foreign corporations are just rolling in dough...

It is theoretically possible to purchase legal liability insurance. However, legal liability insurance generally excludes the US as simply to risky.

Despite the legal advice, we did sell to one customer in the USA whom we though we could trust. A couple of years later things apparently went south. Their lawyer thought "Quick, who can we screw out of some cash?" We got this registered letter in the mail...

Lovely legal system you guys have, just lovely.

p.s. The outcome was good for us, but only because I personally know a couple of lawyers in the US, and one of them helped us out. For most foreign companies, this could have been very, very expensive. If you choose not to show up at the courthouse in Podunk City, the judge will enter a default judgement against you, which will hang around your company's neck like an albatross.

Re:The consequences

[Technician]

That very issue is the number one reason I haven't started a garage business. I have a shop, tools, space, but can't afford the risk to take a product to market.

It's also the number one reason I don't use music in any of my video productions. The legal issues are very much a problem. Until the licensing is changed, I have no use for high risk music, so I don't buy any. Why face legal takedown and lawsuits, or prove the music is not in someone's catalog.

For a local band I just do lighting. So far that hasn't been a huge legal risk with a fight over royalties. Thank goodness the DMX512 standard is open. http://en.wikipedia.org/wiki/DMX512-A

American Dreams

[moeinvt]

Old American Dream: Rugged self reliance, hard work and innovation lead to success and propserity.

New American Dream: Have the government take care of you while you attempt to win a lawsuit or the lottery.

This can get out of hand

[Anonymous Coward]

According to the article, they only invest in cases that are pretty much a surefire win for the plaintiff.

But what happens when a win is not a certainty at all? What if the real purpose of the suit is to harass the defendant or coerce them into settling? Would it be OK to provide 3rd-party funding for the RIAA lawsuits? Most of their cases are too flimsy to go to trial. But for the most part, these cases throw off enough cash to justify the investment. Just as "junk bonds" often have high yields, "junk lawsuits" might offer a good return on investment.

And what happens when the 3rd-party funding is for a questionable case whose main goal is to impede a competitor, coincidentally for the benefit of the funding source? Microsoft's involvement with SCO is one example.

In those cases where the defendants prevail, the "litigation investors" losses are capped at 100% their investment as far as I can tell. The actual plaintiffs may lose more. In fact, they may even go bankrupt, leaving the defendant with an uncollectible judgment. I wish there was a way for the litigation investors to share in the downside of a loss. Using SCO vs. IBM as one example, Why shouldn't Microsoft have to pick up the tab for SCO's liability, proportional to their funding of the scheme?

Re:I'll stick to betting on horses

[Big Hairy Ian]

Nah the bookies like people who win if only because they are such a small proportion that they don't impact profits significantly and it's good advertising. There are plenty of people doing the maths already the bookies make their money out of the ID ten T's that are looking for that one big win. Trust me I lose a lot of money betting I just make more on average.

Add two more...

[bradley13]

6. Laws must be written in a way that is understandable to laymen. If the IRS can do it, so can the legislators.

7. The total text of all laws applying to individuals cannot exceed one million words (that's about 10 normal novels, or four really thick ones). For businesses, you get another million.

There are so many laws of such complexity that no layman can possibly be aware of them all - much less understand them. If "ignorance of the law is no excuse" then it must be possible for a normal person to actually know what the law is.

Re:Add two more...

[dkleinsc]

If the IRS can do it, so can the legislators.

Unfortunately, the IRS can't do it. They can't even write it in a way that's completely understandable for experts. There are several reasons for this, not the least of which is the gazillions of changes to the tax code that get passed every year to make sure that such-and-such-organization gets a break.

If lawyers needed to sign off on RFCs . . .

[PolygamousRanchKid]

In order to change this, laws should be written at least as unambiguous as RFC's, for starters.

. . . we would have no Internet today; we would still be waiting.

IETF: "We plan to have ARP through legal by 2012. TCP and UDP might make it sometime around 2050."

Re:If lawyers needed to sign off on RFCs . . .

[visible.frylock]

If lawyers wrote software, the clock on your desktop that's supposed to give you the date and time would just say TODAY and NOW.

Legal Hackers

[Maximum Prophet]

Good lawyers are actually legal hackers. They look for the edge cases where the law is broken for the good of their client. There's really a lot in common between programmers and lawyers.

no surprise here

[caldodge]

When robbery is permitted (or, at least, can be carried out with little risk) it will flourish, since it's easier to steal something than to create it. This is why Somali pirates are so successful at present.

The enactment of "loser pays" laws would reduce this activity by increasing the cost of this sort of theft.

This is not unethical.

[BForrester]

1. Investment is made in lawsuit that is likely to win, but can't continue for lack of funds
2. Justice is done
3. The little guy wins, could not have done it without investor's help
4. Profit! (Commission for the vendor)

If there is anything unethical about the situation, it's that these lawsuits are in a position where farming out the commission to 3rd party investors is the only way to see justice done and avoid being trampled by richer entities.

It's still a problem

[Anonymous Coward]

As other posters have pointed out, the real problem is that the laws are so complicated no one can comply with them. I would suggest a few simple changes to (eventually) fix the problem. Firstly, have all laws expire after a fixed length of time, unless renewed by the legislature. Secondly, require all legislation to be read aloud in the legislature, in full, with a quorum of members present, before it can become law. Thirdly, enact a lifetime ban on practicing law in a jurisdiction where a person has been involved in enacting a law. This would put an end to the domination of most legislatures by lawyers who, when they leave the legislature, make a very profitable career out of interpreting the gobbledygook they wrote into the law.

Someone "competant"???

[Anonymous Coward]

2. Hire someone competent [faqs.org] to rewrite the laws, aiming for clarity and precision.

You mean, like, a lawyer?

That's exactly what we've got now. Corporate Amerika has hired large teams of professionals (competent to satisfy corporate's needs anyway) and made sure those professionals got placed into office by using whatever social engineering skills were necessary to manipulate the voters. Those so-called professionals are more commonly known as congressmen and senators.

Re:I'll stick to betting on horses

[Bromskloss]

I appreciate that you are willing to answer my questions. Thanks.

Nah the bookies like people who win if only because they are such a small proportion that they don't impact profits significantly and it's good advertising.

But if you really have found a winning strategy you'd be betting more and more money. Others would want you to bet on their behalf and pay you for doing that. Soon enough, the impact would be painful for the bookies. Apparent conclusion: Such winning strategies can't exist for long, because if they did, the bookie would go bankrupt quickly. Don't you agree?

Should be illegal.

[seeker_1us]

Look at the kind of crap that the SCO Group pulled over the last six years...

Re:Should be illegal.

[mjwx]

Look at the kind of crap that the SCO Group pulled over the last six years...

What should happen is that the backer becomes liable for any damages owed by the losing party. SCO does not have any money left but if IBM and Novel could go after their backer (Microsoft, who have plenty of money left) others would think twice before trying this crap.

As others have said this has legitimate uses, a backer allowing a smaller company/individual as a plaintiff to win justly against a larger company who is just attempting to draw out the case beyond the plaintiffs ability to fight. However the backer should share the risk.

#4

[Comboman]

4. If you find there is no law for something new, like, say, the internet, say so. Don't torture existing unrelated laws to fit the new situation.

Conversely, don't create new laws for situations already covered by old laws just for the sake of looking progressive (e.g. If fraud is already illegal, there shouldn't need to be separate laws stating fraud is illegal through the mail, over the phone or over the internet).

bah... should have been patented...

[advocate_one]

as a business method then they'd have to stump up licensing fees in order to do it...

Re:I'll stick to betting on horses

[Big Hairy Ian]

Already have a friend who does this he's the one who clued me in if it gets to the stage you are making too much money out of them they will just ban you from betting with them.

Courts exist so that Lawyers can make money

[Anonymous Coward]

The Civil court system exists to transfer money from people without law degrees to people that have them.

As far as I can tell there are no legal ethics and lawyers always act in their self interest, NOT in the interests of their client.

I wish that it where not so, but it is.

It is a system run by lawyers, with oversight by lawyers, for the benefit of lawyers at the expense of everyone else. They will lie or do anything else they need to to get their way.

If you don't belive me, sell your house to an attorny and see what happens. These people are pure evil.

Re:Courts exist so that Lawyers can make money

[nomadic]

As far as I can tell there are no legal ethics and lawyers always act in their self interest, NOT in the interests of their client.

Well maybe during your sophomore year you'll gain a slightly fuller understanding of the world, and revise your opinion accordingly.

Re:DO NOT CLICK LINK

[Velska1]

Education is never quite free...

I'll stick with the market, thx

[supermegadope]

yeah right Go all in in TMR today on a pullback in the mid .50s you will see 3.00 by Aug I think that will beat your 20% beaten down oil co, when summer demand is coming up. I hope tomorrows Schork report drives it down further so I can double up. and I think ATPG looks just as good. These arent pennys being manipulated and pumped. nyse with vol yesterday over 3 mil

Re:I'll stick with the market, thx

[Anonymous Coward]

TMR is going nowhere fast. They have too much onshore US gas production (low rate, high cost wells). Gas prices have not rebounded as much as oil, and don't appear to be going anywhere fast in the US.

Re:returns are well in excess of 20 percent per ye

[Critical Facilities]

20% per year is not outrageously high

No?

Looks pretty good to me.

Re:I'll stick to betting on horses

[hairyfeet]

Then you are a smart player.I always separated my "stake" money from my "pot" money. As I won I would slowly put the stake back into my pocket so i ended up playing with only money i had won at the table. that way the worst i would do is leave with the same amount I went in with. It actually worked quite well, but time and time again I saw those just as you describe, betting every dime they had hoping to "win big". And of course they were always the big losers.

I never went home rich, maybe $400-600 extra in my pocket, but I never walked out broke either. the most I ever left at a table was $50, because if I felt lady luck wasn't in my corner I said "well boys, its been a pleasure" and walked away. For me the keys to gambling are these- never bet on a sucker hand, like trying for an inside straight,never throw good money after bad, and ALWAYS accept the fact that some nights just aren't gonna be yours and be man enough to walk away when that is the case. I always stuck by those rules and for 3 years I never had to feed my gas sucking Pontiac a dime out of my own pocket.

So ...

[PPH]

... this differs from the way the ACLU backs certain cases how exactly?

Re:So ...

[nomadic]

... this differs from the way the ACLU backs certain cases how exactly?

In every single possible way imaginable? The ACLU a) is actually the law firm in many cases, so it's not benefitting from winning a case it is not involved in, b) is a non-profit that doesn't file lawsuits with money the main goal, c) frequently wins cases where neither its client nor it actually make any money. How are the ACLU and this company similar exactly?

Re:So ...

[PPH]

The ACLU takes contributions from individuals who seek to influence the outcome of certain lawsuits. That these individuals don't receive a monetary return for their "investment" is beside the point. Its not for me or anyone else to judge whether or how they derive benefit from the suits' outcomes.

Re:So ...

[nomadic]

No, it's not besides the point. It's the ENTIRE point. There is nothing wrong with supporting a cause you believe in, but in this case they're supporting causes they don't care about beyond the potential payout. You really see a moral equivalence there?

no no no no you are wrong

[nomadic]

Once upon a time, our elected official were people who had built their own businesses

No, once upon a time our elected officials were wealthy children of privilege, former military officers, and guess what, lawyers (John Adams and Thomas Jefferson and Abraham Lincoln). You know when we had an influx of small businesspeople? During the "Republican revolution" of the 90's, when a bunch of rural, extreme right-wing small businessmen suddenly came into power. They tried to destroy the environment, take off all restraints on corporate greed, and tried to cripple the federal government, before falling out of power themselves due to their rampant corruption.

Today, our electees are basically all lawyers - and we have an economy in meltdown, archaic business efforts are kept around, and even subsidized because it buys votes, and we have a financial system where one can do better with destruction rather than construction.

Our electees are not all lawyers. A good percentage have law degrees, but it's certainly not anywhere near "all." And they are, indeed, ELECTEES. They were elected to office by the people, and it's not up to you to criticize. Besides which, non-lawyers tend to write horrible laws. They're not good at it.

The economic meltdown was not caused by legislators having law degrees, it was caused by unrestrained greed and deregulation of financial institutions. The Gramm-Leach-Bliley Act was a major cause of the financial meltdown. Gramm was an economist. Leach and Bliley were small businessmen. None were lawyers. Maybe we needed MORE lawyers in Congress, huh?

The Missing Link

[Velska1]

Here is the missing link: http://www.pakin.org/complaint

FYI, it is a rant generator. Getting too many clichés in one post makes me suspicious.

Re:The Missing Link

[Velska1]

Or maybe you are the missing link?

(Hit "Submit" too soon...)

Lawyers Making Up Cases

[Velska1]

Whatever you think about the Book of Mormon, it was published in 1830, and it has an interesting description of "judges" (what we would call "lawyers") creating cases out of thin air, because they were paid for the time they spent on cases (See Alma 11).

The idea is not novel at all.

Point Taken

[Velska1]

I get it. You have learned to copy and paste.

Yep, the quote from the Good Book is "[T]he love of money is the root of all evil." (Emphasis added.)

As your post so subtly hints, money is just a tool.

Laws can be simplified

[gurps_npc]

I disagree that with the claim that laws can't be simplified. There are really only three types of crimes: Bloody, monetary, and control. We could replace the confusing crap of various specific rules with 'guideliness' and rule that all 'non-guideline' based stuff immediately gets kicked up to appeal to verify. Example of a simple law. Any claim of taking money/item of value without the legal right to it is entitled to triple reimbursement plus imprisonment time. Followed by an auto-inflation adjusting chart for amount stolen vs. Time in prison, with a set of factors to increase, such as "fully accidental theft = no time and just double reimbrusement", "Negligenct but not accidental theft = 1/2 time", "Taken from charity = time *2) "Taken as revenge = 1/3 time", "Taken in anger without revenge = double time". Things like that. This in effect creates one set of rules for both non-violent break and entree and say embezzlement. It would make things fairer.

Re:Laws can be simplified

[shentino]

Which is precisely why it won't work.

The entrenched professionals will never let it fly.

Re:I'll stick to betting on horses

[petermgreen]

Apparent conclusion: Such winning strategies can't exist for long, because if they did, the bookie would go bankrupt quickly. Don't you agree?
Afaict bookies base there odds on the number of bets they get for each outcome (such that whoever wins the bookie wins). Therefore if you push things too hard then the odds will adjust such that your strategy no longer works.

However if there is a relatively small value of bets made by rational informed betters and a much larger value made by irrational uninformed betters then things could easilly work out in favour of both the bookies and the rational informed betters.

Re:I'll stick to betting on horses

[Bromskloss]

Afaict bookies base there odds on the number of bets they get for each outcome (such that whoever wins the bookie wins). Therefore if you push things too hard then the odds will adjust such that your strategy no longer works.

That sounds just like how I would have guessed it. I'm just thinking that the rational betters would push things to the limit, to make more money.