So, like I said in the article, how confident are you in the result, if we asked 10 lawyers to vote on who was right, and we didn't tell them which argument was made by the lawyer and which was argument by the math major?
In particular, your argument that you're justified in suing the car rental agency because there might be circumstances under which they contributed to the accident (through negligence or renting to someone without the right paperwork). Well, you could say the same thing about an ISP -- there might be circumstances under which they contributed to the user's infringement (perhaps records would show they received complaints about the same user in the past, and did nothing).
The relevant question seems to be: Absent any law that specifically holds a third-party company liable in all cases, how much likelihood is required for some third-party company X to be liable, to justify including them as a defendant in a lawsuit, and then letting the facts come out in the lawsuit to determine if they're truly liable or not? Whatever your answer, you should at least be consistent in the two cases, or give a reason why the two cases should not be treated similarly.
This is an interesting point. So could you perhaps argue that you have a stronger case for subpoenaing the rental car agency, than the ISP -- because if you subpoena the rental car agency, you'll almost certainly get the right party, but if you subpoena the ISP, you'll only probably get the right party?
Hmm. I would still say that if you subpoena the ISP to find the homeowner of record that an IP was assigned to, then even if that homeowner was not the infringer you were looking for, you could subpoena them and there would be a good chance they would know who the infringer was.
Still, one could very well make the argument that you made. My real point was that the judge didn't make this argument, or any other good argument, to say why the car rental agency was not analogous to an ISP. He basically said, "It's not the same because if a car rental customer hits you, you could sue the car rental agency as well", without saying why there was a greater justification for including the rental car agency as a defendant, than for including the ISP as a defendant.
I said in the article that if the rental agency did something negligent to contribute to the accident, they'd be liable (I used the example of not maintaining cars in working order, but your point about renting to someone without a license would also be relevant). My point was that if the car rental agency did nothing negligent, but the driver went out and caused an accident using one of their cars anyway, then there's no logical reason why the rental agency should be liable, and that's the case that's analogous to an ISP giving an account to a customer who goes out and commits copyright infringement.
Now, I said that there's no *logical* reason to hold the car rental agency liable if they did nothing negligent. I did try to find if there are laws in any states that hold the rental agency liable regardless even in cases where they did nothing wrong, but couldn't find any. Even if there were, I would just chalk that up to stupidity on the part of the law. How would you feel if you were a rental car agency, and you rented a car in perfect working order to someone with all the right documentation, and they went out and caused an accident, and the victim sued you and cleaned you out?
All right, but that's really what I meant: Is there an objective, deep reason why we can't have 4 or 5 points even if they don't flow from one point to another? (I submit that all my points were "related" by the common theme of the incident, but I'll give you that they didn't flow:) ) Just skip the ones you're bored with.
It may indeed be "human nature" to lose interest with multiple unrelated points, but it's also human nature to lose interest when reading a story about politics as opposed to the latest sex scandal -- but we encourage people to suppress their frivolous instincts and read more political stories anyway, even if it is, strictly speaking, "against their nature".
Perhaps there's a good argument for encouraging people to take in essays that make four or five points, to give them more to think about.
Here's a thought experiment: Suppose my points had been contained in five separate Letters to the Editor, all printed on the Letters page, but by different authors. Obviously they wouldn't "flow" together, but wouldn't there still be some merit to reading and thinking about all of them? If so, then logically speaking there shouldn't be any less merit to digesting all of them even if they're part of one essay.
Yeah, you're right. I wasn't happy with the lack of focus when I was done with it, but I thought the individual points were important.
But, here's a thought. In the spirit of the article, is it just an "arbitrary convention" that making four or five points in an essay is worse than making one single one? If we'd been raised in a culture that believed the opposite, would we look at an essay that made one single point and say, "Only one point? Lazy!"
I'm not sure if there's a deeper meritocratic reason why an essay with four or five tangents really is worse than an essay with just one point. (That's wholly separate from the issue of whether the points are valid or not, of course.)
The brief I submitted was handled through the defendant's lawyer, who asked me to write it for him, so it was presumably submitted correctly. The expert in question listed extensive credentials claiming to be a longtime computer consultant, so you can say with about as much certainty as you can say about such things, that he knew it wasn't true that "Hotmail messages are stored on your computer."
For all I know you might be right that what he said still did not meet the legal standard for "lying under oath". But in that case, I would say that that doesn't necessarily reflect on what he did; rather, it means there's something wrong with the legal standard for "lying under oath". What is the point of putting experts under oath and requiring them to show their credentials, if they can still make statements like that?
So, to your main point about motions for reconsideration. I don't know if you read it but I wrote an article a while ago [http://yro.slashdot.org/article.pl?sid=07/04/18/1247229] about an experiment where I submitted motions for reconsideration in some of my anti-spam cases, each about 4 pages long, with the middle two pages stuck together by a tiny sliver of paper that would break if the pages were turned, so that I could see after the fact if the judges actually read them before denying them. About half of them did not.
Suppose for the sake of argument that a Supreme Court judge would take their responsibilities more seriously and would actually read the briefs in such a case. You still have the same problem: you're asking the judge to essentially admit that they were wrong (at least in part) after they already published their opinion, and I think that's unreasonably optimistic. In one of my test cases where a judge did actually read the brief I submitted, he actually reversed himself -- the first time I'd seen that happen, and the clerk on duty (this was done in open court) said it was the first time he'd seen it happen -- and he'd worked in the court for 20 years!
I admit that in my proposal, where experts review a draft of the judge's argument before it's published, you're still asking a judge to admit they were wrong -- but in this case they'd only be admitting they're wrong about a tentative conclusion. Hopefully that would be easier for them to admit.
But the real point is that the safeguards you're describing, already exist, and they didn't stop the Seattle judge from endorsing the conclusion that "Hotmail messages are stored on the recipient's hard drive" and ordering the plaintiff to turn over his hard disk. I appreciate the good work that you do within the legal system (if you say I inspired you, then I presume you're on the right side:) ). But what I'm trying to convince people of is that you don't have to be an expert on the legal system to know that some of the conclusions it reaches are just wrong. Just as you don't have to read every book on Wicca to know that spell-casting is superstitious nonsense, if a court rules that "Hotmail messages are stored on a user's hard drive", sometimes that's all you need to know.
The idea behind reviewing the draft in advance and drilling down to specific points, is that it makes it harder for experts to misrepresent the truth about a particular point.
If the judge's draft were reviewed in advance and the experts simply commented on it as a whole, then sure, the expert for the winning side would approve and the expert for the losing side would disapprove.
But that's not what I'm suggesting. If the draft opinion contained a statement that putting junk IP addresses into the headers of an e-mail would somehow make it more "anonymous", one of the experts (probably the one whose side would be more harmed by this incorrect "point") would point out that this was wrong. The receiving mail server can always see the IP address of the machine that sent the message to them, and sprinkling other IPs into the headers would only fool human readers who don't read the headers carefully enough.
It would be much harder for the expert for the other side to disagree with that specific fact, than it would be for them to declare their disagreement to an entire multi-page opinion. If the first expert explained the point well enough, the judge would probably understand why that sentence needed to be fixed too.
Note, however, that all of this does depend on experts not being willing to lie outright, or on the courts being willing to punish them if they do. My first article about a court case was about a spam recipient who sued a spammer who was spamming him at his Hotmail address. The spammer hired an expert witness to declare that the only way to obtain a copy of the Hotmail messages as evidence, would be to obtain a clone copy of the recipient's entire hard drive. I submitted a brief explaining why this was wrong (Hotmail messages are not stored on your hard drive -- no, not even in the browser cache -- and even if they were, it would be ludicrous to claim that was the *only* way to get them, when the recipient could simply make a copy). The judge either didn't read the brief or didn't understand it, and signed the subpoena ordering the spam recipient to turn over a copy of his hard drive. Of course the plaintiff was unwilling to give a criminal spammer a cloned copy of everything on his hard drive, so he dropped the case. The "expert" who claimed that Hotmail messages were stored on a user's hard drive -- much less that the "only way" to get those messages was to get a cloned copy of the hard drive -- simply perjured himself.
OK so those are good points. First, I would say that despite the problems with receiving ex parte advice from experts, that's still no worse, and possibly better than, no third-party advice at all. Because if you're receiving advice from a technical expert, that *might* be wrong, and it's detrimental to justice that the parties to the case can't challenge it -- but the alternative is for the judge to rely on their own understanding already swirling around in their own head, which is *more* likely to be wrong, and which the parties *also* cannot challenge until it's too late. (This is assuming that the expert is disinterested. If the expert has a conflict of interest then their influence may well be worse than nothing.)
But then, rather than having this be fatal to the whole idea, this suggests a change that could cure those problems: Why not have the "proofreading" process happen in open court, or in briefs that both sides can review and respond to, before the judge makes the decision final? In other words, the judge essentially comes out with a "first draft" of their decision and shows it to both sides, challenging them -- or any technical expert retained by either side, or by the court -- to find anything wrong with it. Obviously, the judge doesn't have to agree to change anything that either party thinks is "wrong". But if either party convinces the judge that their understanding of a technical fact is wrong, the judge can change it before their decision becomes final.
Something like that *might* have prevented the Virginia court from issuing a judgment saying that spoofing the headers in an e-mail message is constitutionally protected "anonymous speech" because it hides the real IP address sending the mail.
The objections I read were of the "That's not how we do things" variety. If there were more thoughtful objections, they were buried under too many comments in the first category to find them. So then, you tell me: Whose interests are protected by not having judges' decisions proofread by technical experts who can call out errors in statements about things like how IP addresses work?
I think you are judging the article according to your own standards, while I am arguing for a different set of standards.
I freely admit, up front, that what I wrote would probably not be persuasive to a judge and would not get a good grade from a law professor. Happy?
I was not trying to write a "legal argument". I was trying to make an argument *about* "legal arguments". Essentially, what I'm saying is that if a judge can write an opinion that meets all the criteria for a "good legal argument", and still says that Google employees accessing your e-mails is analogous to bank employees accessing your transaction records, or that "leaving" your e-mails on Google's servers is like leaving drugs in a friend's purse and tantamount to waiving your privacy rights in the same way, then maybe the standards for what makes a "good legal argument" are not stringent enough.
It was the same argument that I made about the Virginia High Court's ruling that forging IP address in e-mail headers was constitutionally protected, because it was "anonymous" speech. That makes no sense to anyone who knows about e-mail headers, because any human or program who knows how to read e-mail headers can see the real IP address that the mail came from. The real point of the essay was not just that the court was wrong about IP addresses, but that there should be ways to stop factual errors like that from sneaking into state-Supreme-Court level opinions. (And then I suggested some ways that those errors could be avoided, like having the opinions be reviewed by technical experts -- under oath, of course -- before they were published. People's objections amounted to, essentially, "That's not how courts do things." Yes, I know that's not how they do things. Why don't they?)
You are disagreeing over the meaning of a word (in this case, "exposed") and calling it a disagreement of fact or logic. First, I quoted the judge saying that the e-mails were exposed to the ISP's *employees*; you changed that in your above text to saying that the e-mails are exposed to the *ISPs*, which is different. Of course the e-mails are exposed to the "ISPs" as an abstract entity, but not to their individual employees, depending on what you mean by "exposed".
I was interpreting "exposed" to mean either (a) that the e-mails were available to employees as a matter of policy, or (b) that the employees were actually looking at them. Under either of those interpretations, the judge's statement would be wrong.
You seem to be interpreting "exposed" to mean that the employees had physical access to get the e-mails if they wanted to (regardless of the consequences for their job if they got caught). In that sense, yes you could say that the e-mails were "exposed" to some employees (although still only a tiny fraction of them).
The problem is that by that definition, any information that you store with *any* company is "exposed" to its employees in the sense that at least a small fraction of them would have physical access to it, regardless of company policy. Thus the meaning would apply too broadly to distinguish one situation from another and would become meaningless.
I think the difference is that even though mathematicians do sometimes disagree on areas of unsettled mathematics, when a mathematician declares that he has made a mathematical argument for something, it generally *is* true that other mathematicians would independently come to the same conclusion. That's not true of a legal conclusion.
I wasn't trying to make an alternative argument. I was only pointing out what I thought were flaws in the judge's logic and facts, in particular his asserted "fact" that ISP employees "routinely" look at customer e-mails.
"Grond" is quite right that if you make an argument in court based on facts and logic rather than on precedent, you will probably be laughed out of court. However, that doesn't necessarily mean there's something wrong with the argument, it could just as well mean that there's something wrong with the court.
I think that "experts" in a field can only really be called "experts" if they independently agree (at least more often than random chance) on their given conclusions. In other words, in this case, if you took 10 different federal judges and put them in separate rooms and asked them to decide this particular legal question, would most of them agree? Probably not. In that sense, they're not really "experts" so much as "designated decision makers". That's fine, we need designated decision makers in order to settle legal questions and move on. But that's not the same as true "expertise".
I think expertise is defined by the correctness of the conclusion that you reach, not by the memorized knowledge or credentials that you display on the way toward reaching that conclusion. And a good test of the correctness of the conclusion is whether similar credentialed experts reach the same conclusion.
So for example when I said that ISP employees do not "routinely", "in the ordinary course of business" read their customers' e-mails as a matter of company policy, and I'm citing credentials as an "Internet expert" in support of that statement, I mean that if you were to take 10 Internet experts and ask them independently, probably at least 8 of them would agree that was a true statement.
There is an alternative point of view, that "expertise" really is defined by your credentials and by the knowledge that you display while making an argument, not by the correctness of your answer. If that's your point of view, then you're absolutely right, there is no point in me critiquing a judge's decision. Of course in that sense there's no point in *any* non-lawyer *ever* critiquing anything in a judge's decision, no matter how absurd it seems to a layperson, so the whole issue is moot.
You're absolutely right. Good catch, thanks.
In my defense though, (a) even my statistics professors would often mis-state this too (and I'd correct them if I caught it -- that's karma for you); and (b) I don't think it detracts from the main point of the story.
That's an excellent point! One that I had originally included in the article but decided to cut out because it was already getting so long.
One idea to counter that would be to only allow pictures to be included in the "lineup" that were more than, say, five years old. That would still allow the standards to become gradually more permissive, but it would happen more slowly. Or declare that only pictures taken before January 1st, 2009 can be used, so that standards don't creep at all.
Or, you could simply say that, what the hell, standards evolve to become more permissive in society anyway, so just let the "lineup" standards evolve too. However it's not clear whether the lineup standards would evolve more slowly than society's standards, or more quickly -- too quickly, perhaps, for us to be comfortable with!
1) Most adult smokers started smoking when they were minors. You can't say that both child and adult judgment with regards to smoking is the same, because fewer people make the decision to start smoking as an adult. No circular reasoning here.
That's true, but then compare the equivalent cases: If a minor walks into a smoke shop smoking a cigarette, then they're already a smoker, so what's the rationale from preventing them from buying a cigarette, compared to an adult who's already a smoker? Or flip it around: if you could (hypothetically) prove that a given adult and a given minor haven't smoked before, what's the rationale for preventing only the minor from smoking?
Even if, say, 20% of all children smoke and 20% of all adults smoke, this doesn't imply that both children and adults have the same rational judgment capabilities, even just with regards to smoking.
I'd argue that it does, for any reasonable definition of "rationality". Rationality generally means that you choose the option that results in the greatest cost/benefit tradeoff, results in maximum utility, or however you want to call it. If the costs and "benefits" of smoking are roughly the same for adults and minors, then for either of them to choose to smoke, is making an equally irrational decision with regards to smoking. Unless there's a reason why their costs and benefits would not be the same.
(There's actually at least one reason I can think of why it would be more rational for a teenager to smoke -- a boy who wants to appear cool to the girls in his class, even if he himself knows that smoking is stupid. (Yes, this works, even if the girls deny it. Ask if yourself if the boys who smoked before anyone else in your school, were more popular with the ladies, or less popular, than average.) This "benefit" usually wouldn't apply to a twenty-something who decided to start smoking.)
The hole in your rebuttal is here: "Why do we assume adult smokers should have more rights than teen smokers? Because their judgment is better. But if they're smoking too, then what's the basis for saying their judgment is better?"
No, I'm saying that it's a fallacy to say that the adult smokers' judgment is better with regards to smoking. Since both groups of people smoke, there's no basis for saying that the adult smokers are more rational with regard to smoking -- unless you say that adults smokers are making a better tradeoff because adult smoking is "less of a bad thing" -- but to make that last point you'd have to just rely on faith, or rely on circular reasoning again ("It's less of a bad thing because their judgment is better!").
No, it contradicts your point: you (presumably!) can see why it's justified to force a 1-yr-old to eat five times a day, but not to force a grown-up to eat because he skipped breakfast. Or don't you?
Ah OK, but I think that's different because a 1-year-old is pretty much just a passive recipient of what their parents feed them, so it's their parents deciding when and how much -- and nobody forces the parent to force-feed their kid 5 times a day. The laws that informally regulate how much and how often parents have to feed their kid, are motivated by a threshold of harm, just like the laws that regulate at what point you can force an adult to eat if they're in danger of starving themselves.
1) Rational person: After five years, he suffers the consequences of smoking *and has known they would happen all along and made other decisions with this in mind*. (e.g. budgeted more for health care, anti-addiction medicine, cosmetic surgery, etc.)
2) Irrational person: He underestimates the costs of smoking, and arrives at the future date, five years later, suffering consequences he hadn't planned on bearing.
Similarly, a rational person would be better at predicting what he would value at a later date, and at allocating resources robust across a broader range of personal values.
It seems this boils down to: The costs are less if you're rational enough to see them coming. (Or as you wrote later, "irrationality can amplify the negative consequences of an action whose consequences are time-delayed".) Well the costs of medical care, anti-addiction meds, etc. are not less on paper, whether or not you see them coming, so let's assume this refers to a more abstract notion of "cost" -- perhaps the stress of getting hit with surprise fees later on.
But even if you assume adults have greater foresight and foresight brings the costs down, there's still an inconsistency, because whatever harm is done by 1 cigarette to a minor without foresight, there is again some number N cigarettes that does an equivalent amount of harm to an adult with foresight... in which case, why don't we ban the adult from smoking that number. (And yes, it would be far less than the threshold you mentioned, where an adult smokes enough all at once to nearly kill themselves.)
Also, note that this would justify letting kids smoke if they could prove that they were setting aside a trust fund for their future smoking-related health costs, not a position that you hear advocated a lot:)
Unfortunately I think this is a combination of "We've always done it that way" (which I mentioned in the article as something I wasn't counting) and circular reasoning. Why do we assume adult smokers should have more rights than teen smokers? Because their judgment is better. But if they're smoking too, then what's the basis for saying their judgment is better? Because for them to smoke is not as big of a problem as for teens to smoke. But why is it not as big a problem? Because we say adult smokers have more rights than teen smokers! And the dog chases its tail in the circle forever...
I actually haven't noticed a huge increase in "responsibilities" since becoming an adult, just rights, which is a pretty good deal. The only major responsibility is paying my own room and board, but of course that's much easier now that I'm getting paid for working instead of being forced to work for free all the time. Of the ones you listed: "voting, driving, running for office, registering for military service, medical care, curfews" -- all of these are "rights" except the draft, which is a special case of adult "responsibility" that many people are opposed to, myself included, and which both major parties are distancing themselves from.
OK but then it just reduces to the same question again: If you have an already-addicted minor and an already-addicted adult, why is it justified to try and stop the minor from continuing to smoke, but not justified to try and stop the adult from continuing to smoke?
Hmm, this is actually better than most of the responses that I paid $1 for. But anyway:
You wrote: **** -You just "proved" that no paternalistic intervention is ever justified, *even by parents to newborns*. Hey, if you believe compelling someone to eat is okay if they're under 2 years old, obviously, there must be some insufficient amount of eating you can do when over 2 years old that would justify force-feeding. Er, yes, there is, it's just not encoded in any specific law that way. ***
I agree. This would seem to support my point, not contradict it. i.e. you're applying my logic to the situation of an adult who isn't eating enough, to which most people agree that it's justified to force-feed them. (And I'm pretty sure this is codified in law somewhere -- that you can force-feed someone if they're really starving themselves to death.)
You wrote: *** It's more like, "People under 18 shouldn't be allowed to smoke because their poor judgment makes them unable to accurately weigh long-term consequences of smoking. Therefore, they will smoke, and later regret the poor health and addiction. Adults may do it in the exact same amount, but then it would be with accurate judgment of the consequences. The rational self would not be victimized by the previous irrational self." ***
This is subtle, but the problem is that since the costs and the "benefits" of smoking are about the same for adults and minors, you can't say that adults who smoke are being more rational about smoking, than minors are. If the two groups are making the same choice with the same costs and benefits, why is one more irrational?
I'm not saying that minors are as rational as adults. I'm not even saying that minors who smoke are as rational as adults who smoke. I'm saying that, unless argued otherwise, minors who smoke are just as rational ABOUT SMOKING, as adults who smoke, are being about smoking. Therefore an adult who smokes is just as likely to be "victimized by the previous irrational self".
You wrote: *** You perform a reductio saying that banning smoking for minors would imply banning some amount of smoking (N) for adults. There is such a ban, so there's no contradiction. Namely, if you smoke so much at once as to nearly kill yourself, that can be considered a suicide attempt, and people can legally restrain you from doing it further until your body can cope. ***
Actually I think there's still a contradiction, because if we were to be consistent, the number N of cigarettes than an adult was prohibited from smoking, would be whatever number causes the equivalent amount of harm that 1 cigarette causes to a minor. But for the actual ban that we have for adults, the number is much higher -- it's not the number of cigarettes that would cause the equivalent harm to 1 cigarette for a kid, it's the number of cigarettes that would induce enough toxicity to kill yourself.
These were good points though.
OK, so how's this work, do you owe me a dollar now?
The doctor never had an understanding with the neighbor, McDonalds, CNN, etc. that they would deliver messages to him because he was paying them, that's the difference:)
Any time you have an e-mail list of 50,000 subscribers, and it's absolutely critical (in the aggregate) to get mail out to them, you're in the situation I described, because you do have no other way to reach them.
(I tried replying but Slashdot ate it. Spam filter maybe? Where do I pay to get around it...)
The list I publish is for people who want new Circumventor sites to get around blocking software. As long as recipients can access Hotmail, Yahoo Mail, etc., they can use it, but if we distributed it via RSS, the censors would just block the RSS feed.
The idea is that even if most people ignore the stories in the random box, as long as some people do read them, the system still works. If only 25% of people vote on the stories in the random box, and it takes 100 people (probably a lot less, by the way) to get a statistically significant sample, then you just have to show it to 400 people instead of 100.
The "shutout voting" idea discussed in the article, is so that really obvious spam would get voted off after only, say, 10 votes had been collected, and eventually spammers wouldn't find it worth their while (if they had to submit a Turing test every time they submitted a post, they only get 10 eyeballs each time they do that, and it's not worth it).
The full list of the test cases with the judges' names is at: http://www.judgejokes.com/booby-trapped-filings.ht ml Although, the judicial elections are over and most of them don't come up for re-election again until 2006...
Besides, part of my point was that all of the existing safeguards -- elections, appeals, a commission for investigating complaints -- are already there, and weren't enough to prevent this from happening. What would be enough? I don't know. I am moving on to federal court to try my luck there. But I feel bad for all the people who are forced to go to district court, for criminal matters and serious family issues like child custody.
Slashdot Mirror
So, like I said in the article, how confident are you in the result, if we asked 10 lawyers to vote on who was right, and we didn't tell them which argument was made by the lawyer and which was argument by the math major?
In particular, your argument that you're justified in suing the car rental agency because there might be circumstances under which they contributed to the accident (through negligence or renting to someone without the right paperwork). Well, you could say the same thing about an ISP -- there might be circumstances under which they contributed to the user's infringement (perhaps records would show they received complaints about the same user in the past, and did nothing).
The relevant question seems to be: Absent any law that specifically holds a third-party company liable in all cases, how much likelihood is required for some third-party company X to be liable, to justify including them as a defendant in a lawsuit, and then letting the facts come out in the lawsuit to determine if they're truly liable or not? Whatever your answer, you should at least be consistent in the two cases, or give a reason why the two cases should not be treated similarly.
This is an interesting point. So could you perhaps argue that you have a stronger case for subpoenaing the rental car agency, than the ISP -- because if you subpoena the rental car agency, you'll almost certainly get the right party, but if you subpoena the ISP, you'll only probably get the right party?
Hmm. I would still say that if you subpoena the ISP to find the homeowner of record that an IP was assigned to, then even if that homeowner was not the infringer you were looking for, you could subpoena them and there would be a good chance they would know who the infringer was.
Still, one could very well make the argument that you made. My real point was that the judge didn't make this argument, or any other good argument, to say why the car rental agency was not analogous to an ISP. He basically said, "It's not the same because if a car rental customer hits you, you could sue the car rental agency as well", without saying why there was a greater justification for including the rental car agency as a defendant, than for including the ISP as a defendant.
I said in the article that if the rental agency did something negligent to contribute to the accident, they'd be liable (I used the example of not maintaining cars in working order, but your point about renting to someone without a license would also be relevant). My point was that if the car rental agency did nothing negligent, but the driver went out and caused an accident using one of their cars anyway, then there's no logical reason why the rental agency should be liable, and that's the case that's analogous to an ISP giving an account to a customer who goes out and commits copyright infringement.
Now, I said that there's no *logical* reason to hold the car rental agency liable if they did nothing negligent. I did try to find if there are laws in any states that hold the rental agency liable regardless even in cases where they did nothing wrong, but couldn't find any. Even if there were, I would just chalk that up to stupidity on the part of the law. How would you feel if you were a rental car agency, and you rented a car in perfect working order to someone with all the right documentation, and they went out and caused an accident, and the victim sued you and cleaned you out?
All right, but that's really what I meant: Is there an objective, deep reason why we can't have 4 or 5 points even if they don't flow from one point to another? (I submit that all my points were "related" by the common theme of the incident, but I'll give you that they didn't flow :) ) Just skip the ones you're bored with.
It may indeed be "human nature" to lose interest with multiple unrelated points, but it's also human nature to lose interest when reading a story about politics as opposed to the latest sex scandal -- but we encourage people to suppress their frivolous instincts and read more political stories anyway, even if it is, strictly speaking, "against their nature".
Perhaps there's a good argument for encouraging people to take in essays that make four or five points, to give them more to think about.
Here's a thought experiment: Suppose my points had been contained in five separate Letters to the Editor, all printed on the Letters page, but by different authors. Obviously they wouldn't "flow" together, but wouldn't there still be some merit to reading and thinking about all of them? If so, then logically speaking there shouldn't be any less merit to digesting all of them even if they're part of one essay.
Yeah, you're right. I wasn't happy with the lack of focus when I was done with it, but I thought the individual points were important.
But, here's a thought. In the spirit of the article, is it just an "arbitrary convention" that making four or five points in an essay is worse than making one single one? If we'd been raised in a culture that believed the opposite, would we look at an essay that made one single point and say, "Only one point? Lazy!"
I'm not sure if there's a deeper meritocratic reason why an essay with four or five tangents really is worse than an essay with just one point. (That's wholly separate from the issue of whether the points are valid or not, of course.)
The brief I submitted was handled through the defendant's lawyer, who asked me to write it for him, so it was presumably submitted correctly. The expert in question listed extensive credentials claiming to be a longtime computer consultant, so you can say with about as much certainty as you can say about such things, that he knew it wasn't true that "Hotmail messages are stored on your computer."
:) ). But what I'm trying to convince people of is that you don't have to be an expert on the legal system to know that some of the conclusions it reaches are just wrong. Just as you don't have to read every book on Wicca to know that spell-casting is superstitious nonsense, if a court rules that "Hotmail messages are stored on a user's hard drive", sometimes that's all you need to know.
For all I know you might be right that what he said still did not meet the legal standard for "lying under oath". But in that case, I would say that that doesn't necessarily reflect on what he did; rather, it means there's something wrong with the legal standard for "lying under oath". What is the point of putting experts under oath and requiring them to show their credentials, if they can still make statements like that?
So, to your main point about motions for reconsideration. I don't know if you read it but I wrote an article a while ago [http://yro.slashdot.org/article.pl?sid=07/04/18/1247229] about an experiment where I submitted motions for reconsideration in some of my anti-spam cases, each about 4 pages long, with the middle two pages stuck together by a tiny sliver of paper that would break if the pages were turned, so that I could see after the fact if the judges actually read them before denying them. About half of them did not.
Suppose for the sake of argument that a Supreme Court judge would take their responsibilities more seriously and would actually read the briefs in such a case. You still have the same problem: you're asking the judge to essentially admit that they were wrong (at least in part) after they already published their opinion, and I think that's unreasonably optimistic. In one of my test cases where a judge did actually read the brief I submitted, he actually reversed himself -- the first time I'd seen that happen, and the clerk on duty (this was done in open court) said it was the first time he'd seen it happen -- and he'd worked in the court for 20 years!
I admit that in my proposal, where experts review a draft of the judge's argument before it's published, you're still asking a judge to admit they were wrong -- but in this case they'd only be admitting they're wrong about a tentative conclusion. Hopefully that would be easier for them to admit.
But the real point is that the safeguards you're describing, already exist, and they didn't stop the Seattle judge from endorsing the conclusion that "Hotmail messages are stored on the recipient's hard drive" and ordering the plaintiff to turn over his hard disk. I appreciate the good work that you do within the legal system (if you say I inspired you, then I presume you're on the right side
The idea behind reviewing the draft in advance and drilling down to specific points, is that it makes it harder for experts to misrepresent the truth about a particular point.
If the judge's draft were reviewed in advance and the experts simply commented on it as a whole, then sure, the expert for the winning side would approve and the expert for the losing side would disapprove.
But that's not what I'm suggesting. If the draft opinion contained a statement that putting junk IP addresses into the headers of an e-mail would somehow make it more "anonymous", one of the experts (probably the one whose side would be more harmed by this incorrect "point") would point out that this was wrong. The receiving mail server can always see the IP address of the machine that sent the message to them, and sprinkling other IPs into the headers would only fool human readers who don't read the headers carefully enough.
It would be much harder for the expert for the other side to disagree with that specific fact, than it would be for them to declare their disagreement to an entire multi-page opinion. If the first expert explained the point well enough, the judge would probably understand why that sentence needed to be fixed too.
Note, however, that all of this does depend on experts not being willing to lie outright, or on the courts being willing to punish them if they do. My first article about a court case was about a spam recipient who sued a spammer who was spamming him at his Hotmail address. The spammer hired an expert witness to declare that the only way to obtain a copy of the Hotmail messages as evidence, would be to obtain a clone copy of the recipient's entire hard drive. I submitted a brief explaining why this was wrong (Hotmail messages are not stored on your hard drive -- no, not even in the browser cache -- and even if they were, it would be ludicrous to claim that was the *only* way to get them, when the recipient could simply make a copy). The judge either didn't read the brief or didn't understand it, and signed the subpoena ordering the spam recipient to turn over a copy of his hard drive. Of course the plaintiff was unwilling to give a criminal spammer a cloned copy of everything on his hard drive, so he dropped the case. The "expert" who claimed that Hotmail messages were stored on a user's hard drive -- much less that the "only way" to get those messages was to get a cloned copy of the hard drive -- simply perjured himself.
OK so those are good points. First, I would say that despite the problems with receiving ex parte advice from experts, that's still no worse, and possibly better than, no third-party advice at all. Because if you're receiving advice from a technical expert, that *might* be wrong, and it's detrimental to justice that the parties to the case can't challenge it -- but the alternative is for the judge to rely on their own understanding already swirling around in their own head, which is *more* likely to be wrong, and which the parties *also* cannot challenge until it's too late. (This is assuming that the expert is disinterested. If the expert has a conflict of interest then their influence may well be worse than nothing.)
But then, rather than having this be fatal to the whole idea, this suggests a change that could cure those problems: Why not have the "proofreading" process happen in open court, or in briefs that both sides can review and respond to, before the judge makes the decision final? In other words, the judge essentially comes out with a "first draft" of their decision and shows it to both sides, challenging them -- or any technical expert retained by either side, or by the court -- to find anything wrong with it. Obviously, the judge doesn't have to agree to change anything that either party thinks is "wrong". But if either party convinces the judge that their understanding of a technical fact is wrong, the judge can change it before their decision becomes final.
Something like that *might* have prevented the Virginia court from issuing a judgment saying that spoofing the headers in an e-mail message is constitutionally protected "anonymous speech" because it hides the real IP address sending the mail.
The objections I read were of the "That's not how we do things" variety. If there were more thoughtful objections, they were buried under too many comments in the first category to find them. So then, you tell me: Whose interests are protected by not having judges' decisions proofread by technical experts who can call out errors in statements about things like how IP addresses work?
I think you are judging the article according to your own standards, while I am arguing for a different set of standards.
I freely admit, up front, that what I wrote would probably not be persuasive to a judge and would not get a good grade from a law professor. Happy?
I was not trying to write a "legal argument". I was trying to make an argument *about* "legal arguments". Essentially, what I'm saying is that if a judge can write an opinion that meets all the criteria for a "good legal argument", and still says that Google employees accessing your e-mails is analogous to bank employees accessing your transaction records, or that "leaving" your e-mails on Google's servers is like leaving drugs in a friend's purse and tantamount to waiving your privacy rights in the same way, then maybe the standards for what makes a "good legal argument" are not stringent enough.
It was the same argument that I made about the Virginia High Court's ruling that forging IP address in e-mail headers was constitutionally protected, because it was "anonymous" speech. That makes no sense to anyone who knows about e-mail headers, because any human or program who knows how to read e-mail headers can see the real IP address that the mail came from. The real point of the essay was not just that the court was wrong about IP addresses, but that there should be ways to stop factual errors like that from sneaking into state-Supreme-Court level opinions. (And then I suggested some ways that those errors could be avoided, like having the opinions be reviewed by technical experts -- under oath, of course -- before they were published. People's objections amounted to, essentially, "That's not how courts do things." Yes, I know that's not how they do things. Why don't they?)
You are disagreeing over the meaning of a word (in this case, "exposed") and calling it a disagreement of fact or logic. First, I quoted the judge saying that the e-mails were exposed to the ISP's *employees*; you changed that in your above text to saying that the e-mails are exposed to the *ISPs*, which is different. Of course the e-mails are exposed to the "ISPs" as an abstract entity, but not to their individual employees, depending on what you mean by "exposed".
I was interpreting "exposed" to mean either (a) that the e-mails were available to employees as a matter of policy, or (b) that the employees were actually looking at them. Under either of those interpretations, the judge's statement would be wrong.
You seem to be interpreting "exposed" to mean that the employees had physical access to get the e-mails if they wanted to (regardless of the consequences for their job if they got caught). In that sense, yes you could say that the e-mails were "exposed" to some employees (although still only a tiny fraction of them).
The problem is that by that definition, any information that you store with *any* company is "exposed" to its employees in the sense that at least a small fraction of them would have physical access to it, regardless of company policy. Thus the meaning would apply too broadly to distinguish one situation from another and would become meaningless.
I think the difference is that even though mathematicians do sometimes disagree on areas of unsettled mathematics, when a mathematician declares that he has made a mathematical argument for something, it generally *is* true that other mathematicians would independently come to the same conclusion. That's not true of a legal conclusion.
I wasn't trying to make an alternative argument. I was only pointing out what I thought were flaws in the judge's logic and facts, in particular his asserted "fact" that ISP employees "routinely" look at customer e-mails.
"Grond" is quite right that if you make an argument in court based on facts and logic rather than on precedent, you will probably be laughed out of court. However, that doesn't necessarily mean there's something wrong with the argument, it could just as well mean that there's something wrong with the court.
I think that "experts" in a field can only really be called "experts" if they independently agree (at least more often than random chance) on their given conclusions. In other words, in this case, if you took 10 different federal judges and put them in separate rooms and asked them to decide this particular legal question, would most of them agree? Probably not. In that sense, they're not really "experts" so much as "designated decision makers". That's fine, we need designated decision makers in order to settle legal questions and move on. But that's not the same as true "expertise".
I think expertise is defined by the correctness of the conclusion that you reach, not by the memorized knowledge or credentials that you display on the way toward reaching that conclusion. And a good test of the correctness of the conclusion is whether similar credentialed experts reach the same conclusion.
So for example when I said that ISP employees do not "routinely", "in the ordinary course of business" read their customers' e-mails as a matter of company policy, and I'm citing credentials as an "Internet expert" in support of that statement, I mean that if you were to take 10 Internet experts and ask them independently, probably at least 8 of them would agree that was a true statement.
There is an alternative point of view, that "expertise" really is defined by your credentials and by the knowledge that you display while making an argument, not by the correctness of your answer. If that's your point of view, then you're absolutely right, there is no point in me critiquing a judge's decision. Of course in that sense there's no point in *any* non-lawyer *ever* critiquing anything in a judge's decision, no matter how absurd it seems to a layperson, so the whole issue is moot.
You're absolutely right. Good catch, thanks. In my defense though, (a) even my statistics professors would often mis-state this too (and I'd correct them if I caught it -- that's karma for you); and (b) I don't think it detracts from the main point of the story.
That's an excellent point! One that I had originally included in the article but decided to cut out because it was already getting so long.
One idea to counter that would be to only allow pictures to be included in the "lineup" that were more than, say, five years old. That would still allow the standards to become gradually more permissive, but it would happen more slowly. Or declare that only pictures taken before January 1st, 2009 can be used, so that standards don't creep at all.
Or, you could simply say that, what the hell, standards evolve to become more permissive in society anyway, so just let the "lineup" standards evolve too. However it's not clear whether the lineup standards would evolve more slowly than society's standards, or more quickly -- too quickly, perhaps, for us to be comfortable with!
1) Most adult smokers started smoking when they were minors. You can't say that both child and adult judgment with regards to smoking is the same, because fewer people make the decision to start smoking as an adult. No circular reasoning here.
That's true, but then compare the equivalent cases: If a minor walks into a smoke shop smoking a cigarette, then they're already a smoker, so what's the rationale from preventing them from buying a cigarette, compared to an adult who's already a smoker? Or flip it around: if you could (hypothetically) prove that a given adult and a given minor haven't smoked before, what's the rationale for preventing only the minor from smoking?
Even if, say, 20% of all children smoke and 20% of all adults smoke, this doesn't imply that both children and adults have the same rational judgment capabilities, even just with regards to smoking.
I'd argue that it does, for any reasonable definition of "rationality". Rationality generally means that you choose the option that results in the greatest cost/benefit tradeoff, results in maximum utility, or however you want to call it. If the costs and "benefits" of smoking are roughly the same for adults and minors, then for either of them to choose to smoke, is making an equally irrational decision with regards to smoking. Unless there's a reason why their costs and benefits would not be the same.
(There's actually at least one reason I can think of why it would be more rational for a teenager to smoke -- a boy who wants to appear cool to the girls in his class, even if he himself knows that smoking is stupid. (Yes, this works, even if the girls deny it. Ask if yourself if the boys who smoked before anyone else in your school, were more popular with the ladies, or less popular, than average.) This "benefit" usually wouldn't apply to a twenty-something who decided to start smoking.)
The hole in your rebuttal is here: "Why do we assume adult smokers should have more rights than teen smokers? Because their judgment is better. But if they're smoking too, then what's the basis for saying their judgment is better?"
No, I'm saying that it's a fallacy to say that the adult smokers' judgment is better with regards to smoking. Since both groups of people smoke, there's no basis for saying that the adult smokers are more rational with regard to smoking -- unless you say that adults smokers are making a better tradeoff because adult smoking is "less of a bad thing" -- but to make that last point you'd have to just rely on faith, or rely on circular reasoning again ("It's less of a bad thing because their judgment is better!").
No, it contradicts your point: you (presumably!) can see why it's justified to force a 1-yr-old to eat five times a day, but not to force a grown-up to eat because he skipped breakfast. Or don't you?
Ah OK, but I think that's different because a 1-year-old is pretty much just a passive recipient of what their parents feed them, so it's their parents deciding when and how much -- and nobody forces the parent to force-feed their kid 5 times a day. The laws that informally regulate how much and how often parents have to feed their kid, are motivated by a threshold of harm, just like the laws that regulate at what point you can force an adult to eat if they're in danger of starving themselves.
1) Rational person: After five years, he suffers the consequences of smoking *and has known they would happen all along and made other decisions with this in mind*. (e.g. budgeted more for health care, anti-addiction medicine, cosmetic surgery, etc.) 2) Irrational person: He underestimates the costs of smoking, and arrives at the future date, five years later, suffering consequences he hadn't planned on bearing. Similarly, a rational person would be better at predicting what he would value at a later date, and at allocating resources robust across a broader range of personal values.It seems this boils down to: The costs are less if you're rational enough to see them coming. (Or as you wrote later, "irrationality can amplify the negative consequences of an action whose consequences are time-delayed".) Well the costs of medical care, anti-addiction meds, etc. are not less on paper, whether or not you see them coming, so let's assume this refers to a more abstract notion of "cost" -- perhaps the stress of getting hit with surprise fees later on.
But even if you assume adults have greater foresight and foresight brings the costs down, there's still an inconsistency, because whatever harm is done by 1 cigarette to a minor without foresight, there is again some number N cigarettes that does an equivalent amount of harm to an adult with foresight... in which case, why don't we ban the adult from smoking that number. (And yes, it would be far less than the threshold you mentioned, where an adult smokes enough all at once to nearly kill themselves.)
Also, note that this would justify letting kids smoke if they could prove that they were setting aside a trust fund for their future smoking-related health costs, not a position that you hear advocated a lot :)
Unfortunately I think this is a combination of "We've always done it that way" (which I mentioned in the article as something I wasn't counting) and circular reasoning. Why do we assume adult smokers should have more rights than teen smokers? Because their judgment is better. But if they're smoking too, then what's the basis for saying their judgment is better? Because for them to smoke is not as big of a problem as for teens to smoke. But why is it not as big a problem? Because we say adult smokers have more rights than teen smokers! And the dog chases its tail in the circle forever...
I actually haven't noticed a huge increase in "responsibilities" since becoming an adult, just rights, which is a pretty good deal. The only major responsibility is paying my own room and board, but of course that's much easier now that I'm getting paid for working instead of being forced to work for free all the time. Of the ones you listed: "voting, driving, running for office, registering for military service, medical care, curfews" -- all of these are "rights" except the draft, which is a special case of adult "responsibility" that many people are opposed to, myself included, and which both major parties are distancing themselves from.
OK but then it just reduces to the same question again: If you have an already-addicted minor and an already-addicted adult, why is it justified to try and stop the minor from continuing to smoke, but not justified to try and stop the adult from continuing to smoke?
Hmm, this is actually better than most of the responses that I paid $1 for. But anyway:
You wrote:
****
-You just "proved" that no paternalistic intervention is ever justified, *even by parents to newborns*. Hey, if you believe compelling someone to eat is okay if they're under 2 years old, obviously, there must be some insufficient amount of eating you can do when over 2 years old that would justify force-feeding. Er, yes, there is, it's just not encoded in any specific law that way.
***
I agree. This would seem to support my point, not contradict it. i.e. you're applying my logic to the situation of an adult who isn't eating enough, to which most people agree that it's justified to force-feed them. (And I'm pretty sure this is codified in law somewhere -- that you can force-feed someone if they're really starving themselves to death.)
You wrote:
***
It's more like, "People under 18 shouldn't be allowed to smoke because their poor judgment makes them unable to accurately weigh long-term consequences of smoking. Therefore, they will smoke, and later regret the poor health and addiction. Adults may do it in the exact same amount, but then it would be with accurate judgment of the consequences. The rational self would not be victimized by the previous irrational self."
***
This is subtle, but the problem is that since the costs and the "benefits" of smoking are about the same for adults and minors, you can't say that adults who smoke are being more rational about smoking, than minors are. If the two groups are making the same choice with the same costs and benefits, why is one more irrational?
I'm not saying that minors are as rational as adults. I'm not even saying that minors who smoke are as rational as adults who smoke. I'm saying that, unless argued otherwise, minors who smoke are just as rational ABOUT SMOKING, as adults who smoke, are being about smoking. Therefore an adult who smokes is just as likely to be "victimized by the previous irrational self".
You wrote:
***
You perform a reductio saying that banning smoking for minors would imply banning some amount of smoking (N) for adults. There is such a ban, so there's no contradiction. Namely, if you smoke so much at once as to nearly kill yourself, that can be considered a suicide attempt, and people can legally restrain you from doing it further until your body can cope.
***
Actually I think there's still a contradiction, because if we were to be consistent, the number N of cigarettes than an adult was prohibited from smoking, would be whatever number causes the equivalent amount of harm that 1 cigarette causes to a minor. But for the actual ban that we have for adults, the number is much higher -- it's not the number of cigarettes that would cause the equivalent harm to 1 cigarette for a kid, it's the number of cigarettes that would induce enough toxicity to kill yourself.
These were good points though.
OK, so how's this work, do you owe me a dollar now?
The doctor never had an understanding with the neighbor, McDonalds, CNN, etc. that they would deliver messages to him because he was paying them, that's the difference :)
Any time you have an e-mail list of 50,000 subscribers, and it's absolutely critical (in the aggregate) to get mail out to them, you're in the situation I described, because you do have no other way to reach them.
(I tried replying but Slashdot ate it. Spam filter maybe? Where do I pay to get around it...) The list I publish is for people who want new Circumventor sites to get around blocking software. As long as recipients can access Hotmail, Yahoo Mail, etc., they can use it, but if we distributed it via RSS, the censors would just block the RSS feed.
The idea is that even if most people ignore the stories in the random box, as long as some people do read them, the system still works. If only 25% of people vote on the stories in the random box, and it takes 100 people (probably a lot less, by the way) to get a statistically significant sample, then you just have to show it to 400 people instead of 100.
The "shutout voting" idea discussed in the article, is so that really obvious spam would get voted off after only, say, 10 votes had been collected, and eventually spammers wouldn't find it worth their while (if they had to submit a Turing test every time they submitted a post, they only get 10 eyeballs each time they do that, and it's not worth it).
The full list of the test cases with the judges' names is at:t ml
http://www.judgejokes.com/booby-trapped-filings.h
Although, the judicial elections are over and most of them don't come up for re-election again until 2006...
Besides, part of my point was that all of the existing safeguards -- elections, appeals, a commission for investigating complaints -- are already there, and weren't enough to prevent this from happening. What would be enough? I don't know. I am moving on to federal court to try my luck there. But I feel bad for all the people who are forced to go to district court, for criminal matters and serious family issues like child custody.