I wonder how much of this is related to the decline of the old media as the "gatekeepers" of information and analysis.
When you're able to get all the information and opinion you want, pre-filtered for your ideological comfort, the echo chamber seems to foster a real information tribalism. Confirmation bias ends up adding to the idea that institutions are being run by the "others" -- whose motives are necessarily corrupt/selfish/based on ignorance. Just go to any political blog/aggregator and read the comments after a particularly big SCOTUS decision - those lousy conservative/liberal justices just serving their big business/labor masters, and we need an ideological clean sweep in the next election to ensure better outcomes next time around etc etc.
They were so incompetent as to file the suit against the wrong company. What makes you think they properly served the company that had the judgment made against it?
The fact that a default judgment was entered. You generally don't get those unless you prove that the defendant was properly served.
That is just an assumption, though, and if the defendant wasn't, in fact, served, but had a judgment entered against it for some reason, its motion to set aside the judgment and/or appeal should be even easier.
The better, and more efficient solution, would have been not to ignore the original mistaken lawsuit. Either call the plaintiff's attorney and get him to voluntarily dismiss out, or if that doesn't work, file a quick motion to dismiss and ask for sanctions to be imposed, on the grounds that the plaintiff and/or her lawyer signed an improper pleading, because they didn't get this simple, basic fact right and could have easily done so.
The worst response is to ignore the suit and then squeal like a stuck pig after a default is entered.
So...you're saying that it is insane to make insanity a defense to a criminal charge?
Snark aside, there are problems with making the illegality of a recording depend on what you plan to do with the recording later on. Like, if you intend to blackmail the person when you make the recording, but later change your mind, that's illegal. But if you don't intend to blackmail when you make the recording, and then change your mind and actually do it, that's not illegal.
But the law draws repeated distinctions based on intention and state of mind. Intentional torts vs negligence. Fraud vs....not fraud. Insanity vs sanity. Difficulties of proof don't always mean we should never consider intent or state of mind. In this case, though, I probably agree with you. It doesn't make sense for the wiretapping law.
It's a daredevil thrill. Announce in real time to all your friends, acquaintances, and wellwishers that you're 30 miles from home, then see if any of them are nervy enough to burglarize you while you're out.
What are you talking about? Net neutrality is basically about -preventing- content discrimination by ISPs. Comcast can't go throttling your traffic based on the content of the packets - whether that content is political or, as is more likely, based on how much the host server owner has paid Comcast.
How you go from that to "the govt [will] squash opposing viewpoints in the name of neutrality" is a mystery.
I'm not underestimating it. If no answer is filed to a complaint, a default judgment takes about as few of the court resources as is possible. The clerk receives a complaint. The clerk enters a little data into the system, stamps the summons, and puts it back in the mail to the plaintiff. When the proof of service is received, that's put in the file. When the default judgment request comes in, the clerk stamps that, updates the system to reflect entry of the judgment, and then it's done.
In the unlikely event that the cumulative civil servant time involved in this case reached "a few tens of thousands of dollars" (and having read the procedural history, I'd guess it was more like a few hundred dollars), that would be....Spamhaus' doing, for having the case moved from the state court to the federal court, then showing up at a hearing to withdraw its answer.
I'm not at all sympathetic to the spammer here, but...this whole thing is a little ado about nothing. Random spammer gets an unenforceable default judgment. The amount of skin off of the backs of anyone reading this article is so negligible as to be effectively zero.
Before you can get a judgment against someone (at least in the US), the court has to have "personal jurisdiction" over them, and they have to be served with the summons and complaint.
The problem in this case is that Spamhaus was sued in some random Illinois state court. Apparently it was served with the complaint, because it then appeared, and had the case removed to federal court. It then filed an answer to the complaint, before withdrawing the answer and not responding any further.
Once Spamhaus was involved enough to remove the case to federal court, and file an answer, it had already submitted to the personal jurisdiction of the trial court, to justify entry of judgment. That's a very different scenario from what you're describing.
There are some situations where the award of more than actual damages in a civil suit is a good idea. Or at the least, reasonably arguable as a good idea.
For example, in our state, the civil conversion law allows for treble damages. Conversion being the civil equivalent of theft. If I "convert" $5000 of your cash, or a widget of yours worth $5000, should I just be required to pay you $5000? You can see the problems with that - it basically turns everyone into a merchant of all their possessions. If you won't voluntarily give or sell me something of yours that I want, I can force a sale just by taking it. So the law allows for treble damages, not just as pure out-of-pocket compensation, but as an additional deterrent.
Punitive damages don't always work the same way, but in some contexts, the deterrent effect is one of the motivating principles. If people and corporations are going to engage in "efficient torts," the law will sometime put its thumb on the scale of the "cost" side of the cost/benefit analysis, to discourage the conduct in question.
As always, the devil is in the details - does such a rule make sense for the tort in question, and is the amount of the punitive damage reasonable?
Re:in other news, cementing the BP CEO has started
on
Gulf Oil Leak Plugged?
·
· Score: 1
Depends what you mean by "limited liability." If you're talking about the protection from individual liability that the shareholders have, that's not particularly relevant to whether liability should be imposed against the company itself.
If you mean "limited liability" in the sense that, say, federal law caps a company's liability at $75 million for a particular mishap, regardless of what the company's actually responsible for - that's an artificial distortion of the market that socializes the costs and helps privatize the gains. It also encourages unduly risky behavior.
What your post seems to be describing is ordinary negligence law. "Some weird freak accident".....drilling with "all the proper safety nets in place" combined with acts of god, etc., versus cutting corners, violating safety regulations, etc. - well, that's basic negligence law. Limitations of liability are built in, and strict liability situations - while they do exist - are rare. The law, in theory, already places liability on the "cheapest cost avoider," i.e., the party that is in the best position to most efficiently avoid the accident.
Why we need additional artificial statutory caps on liability for the party that should be bearing the expense of the accident, when negligence is involved, is beyond me....
And while I agree with you, there's something...precious about a group like this still existing. In this day and age, someone can still be scandalized by the suggestion of a four-letter word? It boggles the mind.
I mean, when reaction videos for 2 girls 1 cup are practically mainstream entertainment, there's still room in the world for these folks, somehow?
Now, as long as they don't actually influence anything, let alone government policy, we're all fine. Somebody's gotta keep the fainting couch manufacturers in business, anyway...
I can't wait till in about 20 years when the generation that is currently using social networking sites the most starts running for major offices like senator seats and judges. Facebook/Myspace/Google/etc are going to come back and bite the shit out of them.
The silver lining on that cloud may be that once everyone has their skeletons fully on display rather than in closets, our society might finally become more rational about what should or should not be a skeleton in the first place. Maybe we'll start taking a harder look at whether youthful, um, exuberances, actually have any bearing on later job performance, rather than just assumptions and moral judgments.
Although we'll probably just end up with the same system, and disqualify 98% of potentially qualified office- or job-holders, instead of the 90% that we do now....
Another problem with "lie detectors," and a good reason that juries rarely ever hear about them, is that juries tend to give them undue deference. You can get a competent defense counsel to present evidence to a jury that they're not reliable, have a lot of false positives, etc etc....and at the end of the day, many jurors will look at it and still think "that's a lot of high-tech sciencey doohickamajigs right there, and this defendant is just trying to talk himself out of scientific proof! I mean, look at those knobs and needles."
It's kind of a good thing that juries are disposed to trust "sciencey" stuff, but not so good when they can't grasp what it really is they're being told about, or what the shortcomings are.
"Well, gambling at its base is a tax on people that can't do math"
This is probably more applicable to lottery tickets in particular, than all gambling....there are, after all, plenty of casual gamblers who understand that over time, the house always wins. And yet, they still go to casinos occasionally, for a few hours, for the entertainment value.
I live near a few tribal casinos, and know plenty of people who will go out gambling, armed with the knowledge that they're likely going to lose (and once or twice a year, I may go with them). The "return" on the investment is the (limited) entertainment value of the Skinner-box variable-interval reinforcement schedule. But that "return" isn't any worse than going out to a movie, or watching a local band....
basically, anything designed to affect ones' emotions is art.
How much does the creator's intent matter? If, for example, you're looking at a striking photograph, does it matter whether it was created through an accident, when a camera fell off of a ledge?
If the proverbial million monkeys at a million typewriters banged out The Love Song of J. Alfred Prufrock, would it no longer be art? And if the intent of the creator matters, does it matter if it turns out that the creator intended something completely different than what most members of the audience experience?
IMO, the intent of the creator is irrelevant - it's about what the audience/consumer experiences. But then, that sort of renders the word "art" almost meaningless as well - any random or naturally occurring phenomenon could be "art." So that may not be a very useful or workable rule.
If nothing else, it makes for an interesting discussion that doesn't get Godwinned as quickly as most:)
Reviewers in the NYT, LA Times, New Yorker, Chicago Sun-Times, etc, routinely and often pan movies, including movies from major studios as well as independent productions.
Movie reviews "can't be trusted" not because they are per se corrupt (I'm sure some are, while others are only unconsciously influenced), but because the whole experience is subjective. The best reviewers will be able to give you a good idea how much -you- might like or dislike a movie, regardless of whether the reviewer did.
I dunno that we need to go categorically labeling everyone who considers what Anthony Lane or Roger Ebert has to say, a "fool" or a shill...
(There was also a spoof skit on this some time back, in which the "correct" answers in a TV contest were determined by a survey. Anyone remember what that skit was? Is it on youtube?)
This probably isn't what you meant, but it's close:
"Now, here are some results from our phone-in poll: 95% of the people believe Homer Simpson is guilty. Of course, this is just a television poll which is not legally binding, unless proposition 304 passes. And we all pray it will."
-Kent Brockman
No matter what happens on Earth, there is an apropos Simpsons quote about it.
I still wonder why it was so successful. Perhaps it was a combination of good timing and good marketing that brought all of the goodies that PC FPS gamers had enjoyed for so many years to a wide audience of adolescent teenagers.* I won't deny that Halo was a good FPS....but it's certainly not everything it's been hyped up to be, and there are definitely good FPSes elsewhere.
IMO, it was an evolution of hype that carried forward after it had started to get a little past the expiration date. When the first teasers and footage for Halo came out, that was still back around the Quake 2 / early Quake 3 time frame. And Halo was still supposed to be a PC game. The graphics looked great compared to the state of the market, and Bungie had a good reputation. "Vehicles" were still some groundbreaking novelty, and the teasers were slickly produced - again, relatively speaking.
So it generated a lot of interest from the gaming crowd that carried over when the change to Xbox-only was made. Playing armchair psychologist...PC gamers decided it was already going to be the next cool FPS, so they had to own it. That mindset managed to survive until it was eventually released on a console, at a time when it wasn't quite as exemplary any more.
It's not that judges and clerks can't "recognize bullshit," it's that it's not their job in an adversarial system to do so - it's up to the parties. Reading assertions of fact or law on a blog can be problematic. The judge might read a fact that was specifically excluded from evidence, on any number of grounds. The judge might read a fact that is disputed, wrong, or even untrue, without knowing that it's untrue. But again, in an adversarial system, the parties are entitled to know what evidence is presented to the trier of fact, and are obligated to make their own cases.
A judge might read an assertion of law on a blog, but not know that there was a subsequent case 3 years later calling the validity of the assertion into question, or overturning it. Judges do not, and should not be expected to, have the entire text of every opinion in their jurisdiction memorized verbatim, and cases often turn on who digs deeply enough to find the precedent closest on point. Again, blogging can help the process - but their use by anyone involved in a pending case should be harmonized with the existing rules of our adversarial system.
The major difference with amicus briefs is that those are filed on the record, by identified parties, with copies delivered to all the litigants. If something in the brief is false, inaccurate, or misleading - or even just arguable - it can be argued and/or reply-briefed by a party who disputes it.
It's the basic difference between adversarial and inquisitorial justice systems. Judges reading blogs about pending cases is blurring that line. Of course, it doesn't follow that preventing blogging by lawyers is the solution.
Slashdot Mirror
I wonder how much of this is related to the decline of the old media as the "gatekeepers" of information and analysis.
When you're able to get all the information and opinion you want, pre-filtered for your ideological comfort, the echo chamber seems to foster a real information tribalism. Confirmation bias ends up adding to the idea that institutions are being run by the "others" -- whose motives are necessarily corrupt/selfish/based on ignorance. Just go to any political blog/aggregator and read the comments after a particularly big SCOTUS decision - those lousy conservative/liberal justices just serving their big business/labor masters, and we need an ideological clean sweep in the next election to ensure better outcomes next time around etc etc.
The fact that a default judgment was entered. You generally don't get those unless you prove that the defendant was properly served.
That is just an assumption, though, and if the defendant wasn't, in fact, served, but had a judgment entered against it for some reason, its motion to set aside the judgment and/or appeal should be even easier.
At this point, probably not.
The better, and more efficient solution, would have been not to ignore the original mistaken lawsuit. Either call the plaintiff's attorney and get him to voluntarily dismiss out, or if that doesn't work, file a quick motion to dismiss and ask for sanctions to be imposed, on the grounds that the plaintiff and/or her lawyer signed an improper pleading, because they didn't get this simple, basic fact right and could have easily done so.
The worst response is to ignore the suit and then squeal like a stuck pig after a default is entered.
So...you're saying that it is insane to make insanity a defense to a criminal charge?
Snark aside, there are problems with making the illegality of a recording depend on what you plan to do with the recording later on. Like, if you intend to blackmail the person when you make the recording, but later change your mind, that's illegal. But if you don't intend to blackmail when you make the recording, and then change your mind and actually do it, that's not illegal.
But the law draws repeated distinctions based on intention and state of mind. Intentional torts vs negligence. Fraud vs ....not fraud. Insanity vs sanity. Difficulties of proof don't always mean we should never consider intent or state of mind. In this case, though, I probably agree with you. It doesn't make sense for the wiretapping law.
It's a daredevil thrill. Announce in real time to all your friends, acquaintances, and wellwishers that you're 30 miles from home, then see if any of them are nervy enough to burglarize you while you're out.
It's like a lower-stakes Russian Roulette!
What are you talking about? Net neutrality is basically about -preventing- content discrimination by ISPs. Comcast can't go throttling your traffic based on the content of the packets - whether that content is political or, as is more likely, based on how much the host server owner has paid Comcast.
How you go from that to "the govt [will] squash opposing viewpoints in the name of neutrality" is a mystery.
I'm not underestimating it. If no answer is filed to a complaint, a default judgment takes about as few of the court resources as is possible. The clerk receives a complaint. The clerk enters a little data into the system, stamps the summons, and puts it back in the mail to the plaintiff. When the proof of service is received, that's put in the file. When the default judgment request comes in, the clerk stamps that, updates the system to reflect entry of the judgment, and then it's done.
In the unlikely event that the cumulative civil servant time involved in this case reached "a few tens of thousands of dollars" (and having read the procedural history, I'd guess it was more like a few hundred dollars), that would be....Spamhaus' doing, for having the case moved from the state court to the federal court, then showing up at a hearing to withdraw its answer.
I'm not at all sympathetic to the spammer here, but...this whole thing is a little ado about nothing. Random spammer gets an unenforceable default judgment. The amount of skin off of the backs of anyone reading this article is so negligible as to be effectively zero.
Before you can get a judgment against someone (at least in the US), the court has to have "personal jurisdiction" over them, and they have to be served with the summons and complaint.
The problem in this case is that Spamhaus was sued in some random Illinois state court. Apparently it was served with the complaint, because it then appeared, and had the case removed to federal court. It then filed an answer to the complaint, before withdrawing the answer and not responding any further.
Once Spamhaus was involved enough to remove the case to federal court, and file an answer, it had already submitted to the personal jurisdiction of the trial court, to justify entry of judgment. That's a very different scenario from what you're describing.
The amount of taxpayer money involved in having a court enter a default judgment is effectively zero.
There's a little bit of time for the court clerk to enter the case on the docket, then the default judgment is signed. Not much more to it than that.
There are some situations where the award of more than actual damages in a civil suit is a good idea. Or at the least, reasonably arguable as a good idea.
For example, in our state, the civil conversion law allows for treble damages. Conversion being the civil equivalent of theft. If I "convert" $5000 of your cash, or a widget of yours worth $5000, should I just be required to pay you $5000?
You can see the problems with that - it basically turns everyone into a merchant of all their possessions. If you won't voluntarily give or sell me something of yours that I want, I can force a sale just by taking it.
So the law allows for treble damages, not just as pure out-of-pocket compensation, but as an additional deterrent.
Punitive damages don't always work the same way, but in some contexts, the deterrent effect is one of the motivating principles. If people and corporations are going to engage in "efficient torts," the law will sometime put its thumb on the scale of the "cost" side of the cost/benefit analysis, to discourage the conduct in question.
As always, the devil is in the details - does such a rule make sense for the tort in question, and is the amount of the punitive damage reasonable?
Depends what you mean by "limited liability." If you're talking about the protection from individual liability that the shareholders have, that's not particularly relevant to whether liability should be imposed against the company itself.
If you mean "limited liability" in the sense that, say, federal law caps a company's liability at $75 million for a particular mishap, regardless of what the company's actually responsible for - that's an artificial distortion of the market that socializes the costs and helps privatize the gains. It also encourages unduly risky behavior.
What your post seems to be describing is ordinary negligence law. "Some weird freak accident".....drilling with "all the proper safety nets in place" combined with acts of god, etc., versus cutting corners, violating safety regulations, etc. - well, that's basic negligence law. Limitations of liability are built in, and strict liability situations - while they do exist - are rare. The law, in theory, already places liability on the "cheapest cost avoider," i.e., the party that is in the best position to most efficiently avoid the accident.
Why we need additional artificial statutory caps on liability for the party that should be bearing the expense of the accident, when negligence is involved, is beyond me....
An illusory opt-out system . . . Therein lies the trick; by offering too many choices, individuals are likely to choose poorly, or not at all.
So....is Facebook a better metaphor for capitalism or democracy?
Oh, where are the mod points when you need them??
And while I agree with you, there's something...precious about a group like this still existing. In this day and age, someone can still be scandalized by the suggestion of a four-letter word?
It boggles the mind.
I mean, when reaction videos for 2 girls 1 cup are practically mainstream entertainment, there's still room in the world for these folks, somehow?
Now, as long as they don't actually influence anything, let alone government policy, we're all fine. Somebody's gotta keep the fainting couch manufacturers in business, anyway...
The silver lining on that cloud may be that once everyone has their skeletons fully on display rather than in closets, our society might finally become more rational about what should or should not be a skeleton in the first place. Maybe we'll start taking a harder look at whether youthful, um, exuberances, actually have any bearing on later job performance, rather than just assumptions and moral judgments.
Although we'll probably just end up with the same system, and disqualify 98% of potentially qualified office- or job-holders, instead of the 90% that we do now....
I think you have malamanteauitis...
Few if any industries could withstand the theft of $51 billion worth of their products.
It's a good thing your products aren't being stolen, then...just copied unlawfully.
The industry could do a better job of being sympathetic, if it wasn't so obviously dishonest about its victimization....
Another problem with "lie detectors," and a good reason that juries rarely ever hear about them, is that juries tend to give them undue deference. You can get a competent defense counsel to present evidence to a jury that they're not reliable, have a lot of false positives, etc etc....and at the end of the day, many jurors will look at it and still think "that's a lot of high-tech sciencey doohickamajigs right there, and this defendant is just trying to talk himself out of scientific proof! I mean, look at those knobs and needles."
It's kind of a good thing that juries are disposed to trust "sciencey" stuff, but not so good when they can't grasp what it really is they're being told about, or what the shortcomings are.
"Well, gambling at its base is a tax on people that can't do math"
This is probably more applicable to lottery tickets in particular, than all gambling....there are, after all, plenty of casual gamblers who understand that over time, the house always wins. And yet, they still go to casinos occasionally, for a few hours, for the entertainment value.
I live near a few tribal casinos, and know plenty of people who will go out gambling, armed with the knowledge that they're likely going to lose (and once or twice a year, I may go with them). The "return" on the investment is the (limited) entertainment value of the Skinner-box variable-interval reinforcement schedule. But that "return" isn't any worse than going out to a movie, or watching a local band....
You'd think that after a few decades of the internets, IRL trolling wouldn't still be so easy.
basically, anything designed to affect ones' emotions is art.
:)
How much does the creator's intent matter? If, for example, you're looking at a striking photograph, does it matter whether it was created through an accident, when a camera fell off of a ledge?
If the proverbial million monkeys at a million typewriters banged out The Love Song of J. Alfred Prufrock, would it no longer be art? And if the intent of the creator matters, does it matter if it turns out that the creator intended something completely different than what most members of the audience experience?
IMO, the intent of the creator is irrelevant - it's about what the audience/consumer experiences. But then, that sort of renders the word "art" almost meaningless as well - any random or naturally occurring phenomenon could be "art." So that may not be a very useful or workable rule.
If nothing else, it makes for an interesting discussion that doesn't get Godwinned as quickly as most
Reviewers in the NYT, LA Times, New Yorker, Chicago Sun-Times, etc, routinely and often pan movies, including movies from major studios as well as independent productions.
Movie reviews "can't be trusted" not because they are per se corrupt (I'm sure some are, while others are only unconsciously influenced), but because the whole experience is subjective. The best reviewers will be able to give you a good idea how much -you- might like or dislike a movie, regardless of whether the reviewer did.
I dunno that we need to go categorically labeling everyone who considers what Anthony Lane or Roger Ebert has to say, a "fool" or a shill...
This probably isn't what you meant, but it's close:
"Now, here are some results from our phone-in poll: 95% of the people believe Homer Simpson is guilty. Of course, this is just a television poll which is not legally binding, unless proposition 304 passes. And we all pray it will."
-Kent Brockman
No matter what happens on Earth, there is an apropos Simpsons quote about it.
IMO, it was an evolution of hype that carried forward after it had started to get a little past the expiration date.
When the first teasers and footage for Halo came out, that was still back around the Quake 2 / early Quake 3 time frame. And Halo was still supposed to be a PC game. The graphics looked great compared to the state of the market, and Bungie had a good reputation. "Vehicles" were still some groundbreaking novelty, and the teasers were slickly produced - again, relatively speaking.
So it generated a lot of interest from the gaming crowd that carried over when the change to Xbox-only was made. Playing armchair psychologist...PC gamers decided it was already going to be the next cool FPS, so they had to own it. That mindset managed to survive until it was eventually released on a console, at a time when it wasn't quite as exemplary any more.
It's not that judges and clerks can't "recognize bullshit," it's that it's not their job in an adversarial system to do so - it's up to the parties. Reading assertions of fact or law on a blog can be problematic. The judge might read a fact that was specifically excluded from evidence, on any number of grounds. The judge might read a fact that is disputed, wrong, or even untrue, without knowing that it's untrue. But again, in an adversarial system, the parties are entitled to know what evidence is presented to the trier of fact, and are obligated to make their own cases.
A judge might read an assertion of law on a blog, but not know that there was a subsequent case 3 years later calling the validity of the assertion into question, or overturning it. Judges do not, and should not be expected to, have the entire text of every opinion in their jurisdiction memorized verbatim, and cases often turn on who digs deeply enough to find the precedent closest on point. Again, blogging can help the process - but their use by anyone involved in a pending case should be harmonized with the existing rules of our adversarial system.
The major difference with amicus briefs is that those are filed on the record, by identified parties, with copies delivered to all the litigants. If something in the brief is false, inaccurate, or misleading - or even just arguable - it can be argued and/or reply-briefed by a party who disputes it.
It's the basic difference between adversarial and inquisitorial justice systems. Judges reading blogs about pending cases is blurring that line.
Of course, it doesn't follow that preventing blogging by lawyers is the solution.