I think part of our disagreement is over what we philosophically believe law is supposed to do.
The less 'legalese' is used in the statutes, the more room there is for judges and juries to use judgment and discretion in deciding whether something falls into one category or the other. Whether you think that is a good or bad thing depends on your views of democracy, jurisprudence and social justice. If the choice is between leaving the categorization in the hands of elected legislators or 12 people selected at random, I'd prefer that that term be defined exhaustively by the legislature, even if it means I have to call and get legal advice before opening my business/filing my taxes/putting my evil masterplan into operation.
Because they DON'T NEED TO UNDERSTAND THE INTRICACIES TO USE IT. It's a SHITTY analogy, ok? I don't need to understand an internal combustion engine to drive a car. I DO need to understand the law to use it. And if I'm expected to live by it, I damn well better understand it.
And you don't necessarily need to understand the law to abide by it or use it, you need to have access to people that do and who can advise you. We may all be able to drive, but when we want to fly from NY to LA, most of us take a seat in coach and let the pilot do the flying. What we need to know is how to get to the airport ticket counter. When the pilot tells us that there's a tailwind and we'll arrive 30 minutes early, we don't need to know aerodynamics, we just need to update our itinerary.
And how are you going to evaluate that expertise? Your last will & testament will only be reviewed by the court to find out whether it's valid after you're dead. It's a little late to hire a lawyer then. This is one of the most obvious cases for consumer protection legislation I can think of - and hence, legal prohibitions on practicing law without a license.
Do you know what estate lawyers think of those $40 do-it-yourself legal will kits? They're not afraid of them taking away their business - they're the greatest business generation tools ever created. People save a hundred bucks up front and their kids end up spending the entire estate (or more) fighting later because the testator didn't fill it in right or get it witnessed properly, or the instructions were just wrong to begin with.
Not all law is complicated, no. Wills, however, can be one of the most complicated areas of all because a tiny error can invalidate the whole thing.
Lawyers (at least in Canada) have two important features: very strict professional requirements; and very large insurance covers. You're not just buying someone's skill and professional judgment, you're buying their insurance cover if they @#%! up and you need to sue them. Try that with some guy running Wills'R'us out of a small storefront somewhere. A lawyer in my province can't practice without at least $1M in insurance cover, and many/most carry a heck of a lot more.
Actually, in my jurisdiction courthouse libraries are funded by a levy upon all practicing lawyers by our self-regulating professional body. While I suppose you could call this a tax, it isn't being applied to the general public.
The Code vs. legal code analogy is interesting, and apt. Unfortunately, legal codes have to intersect with the real world in a way most computer code does not. No computer ever had to decide whether something was just, or fair. Computers don't have to consider the constitutional rights of the bits they're manipulating. No DIMM chip ever got to vote.
The basic task of judges and counsel is, to a large extent, categorization. IMHO, this is far more complex in the real world than anything you're liable to code into a computer.
I believe that most American citizens are, generally, decent, kind and law-abiding.
I don't see what that has to do with anything. Almost by definition laws attempt to restrain that element of society which is not prepared to respect other members of society without the threat of some penalty.
Technically, we both know that the majority of American citizens break the law twenty times a day without a second thought. Very rare is the citizen who always signals before changing lanes, never drives over the speed limit, has never downloaded mp3s or copied software, never partakes of any illegal substance or never partakes of a legal substance somewhere where they're not supposed to.
IMHO, the litigation craze in the US is mainly attributable to two things - no cap on non-pecuniary damages and insane punitive damages awards, on the one hand, and the lack of a two way costs system on the other.
In Canada, if you sue and win you get ~35% of your legal costs back from the other side. If you sue and lose, you pay ~35% of their legal costs. If the suit was frivolous or malicious, in some cases you will be ordered to pay their entire legal bill. This is a disincentive to frivolous litigation, obviously. Also, in Canada the damages for pain and suffering are capped at common law - any judgment for more than a certain number in respect of pain and suffering is automatically unreasonable and reduced on appeal. Punitive damages are very hard to get. The result is that Canada isn't as litigious a society.
Legislation and litigation creep have very little to do with one another. Rarely will the legislature enact new forms of civil liability - not exactly a popular move with big business and consumer groups aren't a major campaign contributor.
Litigation creep is more often restrained by statute than caused by it. As time goes by, the common law adapts itself to the world it lives in. Many things were once actionable but now are not - things that were not tortious two decades ago would now get you sued in a heartbeat, and rarely is this a product of the legislators, but rather of the courts, lawyers, and the juries.
Perhaps - I don't deny that the effective requirement of an "elite" group of interpreters is not the ideal. But a law that is so vague as to be easily understood but to have no certain application is no better - by its very nature as a code of conduct carrying with it punishments, up to and including the most severe sanction available, the law must be certain. Certainty and clarity have always been at war with one another.
At least in this country, the role of the bar in mediating the interpretation and application of law has been recognized as having a constitutional aspect - the legal profession is required for the rule of law, upon which any constitutional society, is based to function. This is why solicitor-client communications are privileged. Is there an aspect of elitism? Probably - in Canada, solicitor-client communications are privileged, but doctor-patient and priest-penitent communications aren't, except on a case by case basis. I don't have a problem with that personally, but I suspect many would.
LOL. I love the conspiracy theory. Yes indeed, professional competence is just a big scheme.
The rules are written to avoid confusion, disputes and cases getting in front of a judge without both sides being ready. That they're insanely complicated is mainly a function of how the rulemakers have had to close every conceivable loophole, not any plot on the part of the bar.
No, I doubt they cause LexisNexis any worries at all - the value added is the headnotes, cross linking and procedural history links.
The phrase "google law" strikes fear into the hearts of judges, clerks and court registries, however, as they foresee a flood of caselaw handed up by self-represented litigants, none of which are on point, some of which were overturned on appeal [but this fact isn't apparent from a keyword search], and most of which don't actually mean what the litigant thinks they do.
Why doesn't Lexis sell flat rate to libraries? Becasue they can't afford it at the per seat rates that would be charged anyhow so why bother, because untrained users would thrash the databases with poor search strategies and still never be able to actually find what they're looking for (every law student takes a course in research strategies, even with Lexis access most wouldn't be able to figure out what they needed let alone find it), and because the tech support costs of that many non-legally trained searchers being added to the network would be monstrous. Lexis' most valuable service is its 1-800 number - problem with a search, can't quite find the right keywords? Call Lexis, they'll e-mail you the search result. Seriously - at least here in Canada, their customer service is *good*. But that's because only lawyers, law librarians and law students call them - we can narrow it down a lot, and we aren't asking legal advice. They couldn't offer that service to the general public.
The bottom line is that the law is open source. No one can copyright the court decisions or codes themselves, only the particular editions and finding aids that are value added by the legal publishers.
There's nothing stopping the ALA from putting together a consortium to offer complete online legal research services to public libraries across the country... except the tens of millions of dollars required to scan, correct, cross reference and upload every case since the 19th century into a database, the staff of hundreds of people who have to update that database every single day with the new cases released by every court in the US, Canada, Australia, all of the European Union, every federal, state and provincial tribunal in all of those jurisdictions, every law review article published in all those countries, and so on and so on.
Lexis charges hundreds of dollars an hour for a reason, and it's not that they're gouging.
I appear against self represented litigants all the time, and it's a nightmare. They *never* fully understand all the rules that apply to what they're trying to do, so the whole thing bogs down. Inevitably they've left something out of the paperwork and someone is surprised by something or something the judge needs to make a decision wasn't filed or etc etc etc. Trust me, unless you have very litigant friendly small claims court rules, you need a lawyer.
Have you ever *read* the procedural rules for your state? The superior court rules for my province run for 652 pages. There are at least five separate rules, each with between ten and 30 sub clauses, that govern how to file and serve a writ to begin an action. The two rules that govern how to schedule and appear on a simple procedural motion run for 13 pages.
These rules weren't put in for fun - they're there because in each case there has been some disagreement in the past about what had to be done when, or how, or who was entitled to what, so they spelled it out in a rule. You need extremely detailed rules in litigation because by definition the parties don't really like or trust one another.
Ever read Lon Fuller? Lawmakers are trying to walk a very fine line between overtechnical impenetrable detail and ambiguous generalities, with lawyers there to help people when they the lawmakers stray too far to one side or the other. If a law is too detailed, no one who is not trained in the area really understands it. If it isn't detailed enough, you need lawyers to explain how the courts have interpreted the ambiguity.
Provincial commissioners comment on federal legislation all the time. Read the transcripts of the senate hearings on Bill C-54 and C-6 (PIPEDA)- I'm pretty sure Cavoukian from Ontario spoke, and I'm fairly sure Flaherty from BC spoke too.
Now in thay case, it was going to affect them pretty directly, given the opting-out system of that legislation.
The present commissioner, IMHO, is the worst we've ever had in Canada. I thought the incident regarding his open letter to the Information Commissioner regarding an appeal that was before the courts was appalling. See this, wherein Radwanski is quoted as writing that having the Prime Minister turn over agendas showing his meeting schedule would be "tantamount to informational rape."
The reason we have credit reports is that without them, credit is hard to get and consequently very expensive, as the risk is so high to the lender. So in the era of debtor's prisons, no one's going to lend any significant amount to the average man on the stret, except consumer lending in small amounts from individual merchants. If you were getting a whack of cash, you were respectable and well known in the community (or had good reference letters if you were new to town) and bourgeois or higher up the class ladder.
So - you're bourgeois and (therefore) probably a professional or small business owner. Why do you need to borrow? Oh sure, maybe to get that new model horsedrawn carriage, goes zero to trot faster than anything else on the market. More likely, because you want to expand your business. But then, bad times hit and the tulip market collapses and you end up in debtor's prison.
Basically, they had created a system where expanding your business could put you in prison. Wow, there's a real incentive to capitalism and economic growth.
Can't fault the lawyers or the company, really, for not wanting to become a big fat test case. I wonder though whether they pulled the comment after the contact info was wrong because a) it allowed them to save face because it was within their policy; or b) the guy who posted it doesn't exist or couldn't be found and the legal types thought they were hooped without his testimony.
During my undergrad, unofficial department policy was that no paper received an A+ unless it could be published, as is, in a major scholarly journal. Needless to say, there weren't any handed out.
This guy obviously wants attention, so I thought I would give him some. He'd have to come to Michigan to sue me.
You sure about that? He's suing eBay and the original feedback poster in California, he could certainly sue you there too. Wouldn't necessarily be able to get a default judgment enforced in Michigan, but he can wreck your life pretty good trying.
Winning is beside the point - redo it until you get a fair trial with no major procedural errors. So long as you can't say the trial was fair and there were no major errors from the bench, no one really "won" and it deserves to be thrown out. If it was a fair trial and there were no errors, feel free to appeal your loss, but you'll lose on appeal and that'll be it.
Yes, interesting article, but that has nothing to do with this. Jurisdiction simpliciter as applied to private international law is hardly the issue - rather, we're dealing with the question of how to deal with contempt of court by foreign media who feel they can get away with it because they think they're beyond the reach of the other country's criminal courts, also, with simple ignorance that leads to inadvertant publication on the internet of information that can/will be accessed from a region where the publication ban is in effect.
Ban the foreign press, make all spectators sign a legally binding gag order. Make sure these contracts are binding across borders.
Contract is unnecessary, as they're already committing a criminal offense if they break the ban. Getting something in writing just makes it a lot easier to prosecute.
You should read the reported comments of the judge and lawyers in this case - they're *not* happy, and mentioned some US journalists by name in the warning from the bench. Those people are walking on very thin ice.
Don't forget that this is a preliminary inquiry - the comparable procedure in the US is the Grand Jury... which is behind closed doors and not open to the public, and if you publish anything about grand jury evidence or deliberation, you're going to jail for a long time. In Canada, our system is actually more open. The public can attend and see that justice is being done - it removes the star chamber feel of grand jury deliberations, because the general public can attend and make sure things are legit - but this doesn't mean that you wouldn't taint the jury pool if salacious details were widely reported. Don't forget, this isn't a full trial right now - the prosecution has a laughably low burden to have this set down for trial, and will show just enough evidence to get there. The defence may not even try to fight back - why give anything away? The prelim is really a tool for the defense to get a free go round, seeing the prosecution's case and crossexamining their witnesses. The defendant doesn't really get to present a defense or explain - if there's any evidence at all, he'll be bound over for trial. As a result, any reporting would present a very skewed picture of the legal landscape facing the defendant. The system remains in place because the defense bar fights tooth and nail to keep it, and because occasionally charges *are* dismissed, and that makes the cost of the prelim in the other cases worth it by saving the cost, embarassment and waste of time of trying an obviously innocent person.
In the U.S., Double jeopardy absolutely bars prosecution appeals. Totally and completely. That's why you never hear about them, or see them in movies: they don't exist.
That's right. Even if the judge totally screws up. Whether it's law or fact. (And, for that matter, defendants are free to appeal decisions of fact; they just face a higher burden of persuasion.)
I like our (Canadian) system better - if the judge screws up, and it makes a difference, you do it over again, no matter who benefitted. Here, while I suppose you're technically able to appeal a question of fact, what you're really doing is alleging an error of law - the judge having made a finding of fact with no evidence whatsoever to support it. That's the standard, and it's obviously not easily met.
Uh, the most basic requirement for misrepresentation is that there be a representation to someone. To whom, exactly, is Real representing a certain fact? And what fact?
In the real world, it's more like handing you a ten page contract, with a clause on page one saying "We will not do X" and having a sub-sub-sub clause on the eighth page say "Notwithstanding the clause on page one, we will do X under the following situations..."
For a unilateral contract (contract of adhesion, if you prefer), in the Anglo-Canadian common law world, Tilden v. Clendenning says the person presenting you with the contract should bring any unusual terms to your attention, if they intend to rely on them later. OTOH, that case involved rental car contracts and was premised on people not having time to read them over carefully before signing - I don't know if they'd apply it to click throughs read in the privacy of one's own home.
And? Make the tax the responsibility of the purchaser. If you put a line on the income tax form for total out of state internet purchases that would add this to the yearly bill, people could pay or else lie and risk going to prison.
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The less 'legalese' is used in the statutes, the more room there is for judges and juries to use judgment and discretion in deciding whether something falls into one category or the other. Whether you think that is a good or bad thing depends on your views of democracy, jurisprudence and social justice. If the choice is between leaving the categorization in the hands of elected legislators or 12 people selected at random, I'd prefer that that term be defined exhaustively by the legislature, even if it means I have to call and get legal advice before opening my business/filing my taxes/putting my evil masterplan into operation.
Do you know what estate lawyers think of those $40 do-it-yourself legal will kits? They're not afraid of them taking away their business - they're the greatest business generation tools ever created. People save a hundred bucks up front and their kids end up spending the entire estate (or more) fighting later because the testator didn't fill it in right or get it witnessed properly, or the instructions were just wrong to begin with.
Not all law is complicated, no. Wills, however, can be one of the most complicated areas of all because a tiny error can invalidate the whole thing.
Lawyers (at least in Canada) have two important features: very strict professional requirements; and very large insurance covers. You're not just buying someone's skill and professional judgment, you're buying their insurance cover if they @#%! up and you need to sue them. Try that with some guy running Wills'R'us out of a small storefront somewhere. A lawyer in my province can't practice without at least $1M in insurance cover, and many/most carry a heck of a lot more.
Actually, in my jurisdiction courthouse libraries are funded by a levy upon all practicing lawyers by our self-regulating professional body. While I suppose you could call this a tax, it isn't being applied to the general public.
The basic task of judges and counsel is, to a large extent, categorization. IMHO, this is far more complex in the real world than anything you're liable to code into a computer.
Technically, we both know that the majority of American citizens break the law twenty times a day without a second thought. Very rare is the citizen who always signals before changing lanes, never drives over the speed limit, has never downloaded mp3s or copied software, never partakes of any illegal substance or never partakes of a legal substance somewhere where they're not supposed to.
IMHO, the litigation craze in the US is mainly attributable to two things - no cap on non-pecuniary damages and insane punitive damages awards, on the one hand, and the lack of a two way costs system on the other.
In Canada, if you sue and win you get ~35% of your legal costs back from the other side. If you sue and lose, you pay ~35% of their legal costs. If the suit was frivolous or malicious, in some cases you will be ordered to pay their entire legal bill. This is a disincentive to frivolous litigation, obviously. Also, in Canada the damages for pain and suffering are capped at common law - any judgment for more than a certain number in respect of pain and suffering is automatically unreasonable and reduced on appeal. Punitive damages are very hard to get. The result is that Canada isn't as litigious a society.
Litigation creep is more often restrained by statute than caused by it. As time goes by, the common law adapts itself to the world it lives in. Many things were once actionable but now are not - things that were not tortious two decades ago would now get you sued in a heartbeat, and rarely is this a product of the legislators, but rather of the courts, lawyers, and the juries.
At least in this country, the role of the bar in mediating the interpretation and application of law has been recognized as having a constitutional aspect - the legal profession is required for the rule of law, upon which any constitutional society, is based to function. This is why solicitor-client communications are privileged. Is there an aspect of elitism? Probably - in Canada, solicitor-client communications are privileged, but doctor-patient and priest-penitent communications aren't, except on a case by case basis. I don't have a problem with that personally, but I suspect many would.
The rules are written to avoid confusion, disputes and cases getting in front of a judge without both sides being ready. That they're insanely complicated is mainly a function of how the rulemakers have had to close every conceivable loophole, not any plot on the part of the bar.
The phrase "google law" strikes fear into the hearts of judges, clerks and court registries, however, as they foresee a flood of caselaw handed up by self-represented litigants, none of which are on point, some of which were overturned on appeal [but this fact isn't apparent from a keyword search], and most of which don't actually mean what the litigant thinks they do.
The bottom line is that the law is open source. No one can copyright the court decisions or codes themselves, only the particular editions and finding aids that are value added by the legal publishers.
There's nothing stopping the ALA from putting together a consortium to offer complete online legal research services to public libraries across the country... except the tens of millions of dollars required to scan, correct, cross reference and upload every case since the 19th century into a database, the staff of hundreds of people who have to update that database every single day with the new cases released by every court in the US, Canada, Australia, all of the European Union, every federal, state and provincial tribunal in all of those jurisdictions, every law review article published in all those countries, and so on and so on.
Lexis charges hundreds of dollars an hour for a reason, and it's not that they're gouging.
Have you ever *read* the procedural rules for your state? The superior court rules for my province run for 652 pages. There are at least five separate rules, each with between ten and 30 sub clauses, that govern how to file and serve a writ to begin an action. The two rules that govern how to schedule and appear on a simple procedural motion run for 13 pages.
These rules weren't put in for fun - they're there because in each case there has been some disagreement in the past about what had to be done when, or how, or who was entitled to what, so they spelled it out in a rule. You need extremely detailed rules in litigation because by definition the parties don't really like or trust one another.
Ever read Lon Fuller? Lawmakers are trying to walk a very fine line between overtechnical impenetrable detail and ambiguous generalities, with lawyers there to help people when they the lawmakers stray too far to one side or the other. If a law is too detailed, no one who is not trained in the area really understands it. If it isn't detailed enough, you need lawyers to explain how the courts have interpreted the ambiguity.
Now in thay case, it was going to affect them pretty directly, given the opting-out system of that legislation.
The present commissioner, IMHO, is the worst we've ever had in Canada. I thought the incident regarding his open letter to the Information Commissioner regarding an appeal that was before the courts was appalling. See this, wherein Radwanski is quoted as writing that having the Prime Minister turn over agendas showing his meeting schedule would be "tantamount to informational rape."
The reason we have credit reports is that without them, credit is hard to get and consequently very expensive, as the risk is so high to the lender. So in the era of debtor's prisons, no one's going to lend any significant amount to the average man on the stret, except consumer lending in small amounts from individual merchants. If you were getting a whack of cash, you were respectable and well known in the community (or had good reference letters if you were new to town) and bourgeois or higher up the class ladder. So - you're bourgeois and (therefore) probably a professional or small business owner. Why do you need to borrow? Oh sure, maybe to get that new model horsedrawn carriage, goes zero to trot faster than anything else on the market. More likely, because you want to expand your business. But then, bad times hit and the tulip market collapses and you end up in debtor's prison.
Basically, they had created a system where expanding your business could put you in prison. Wow, there's a real incentive to capitalism and economic growth.
Can't fault the lawyers or the company, really, for not wanting to become a big fat test case. I wonder though whether they pulled the comment after the contact info was wrong because a) it allowed them to save face because it was within their policy; or b) the guy who posted it doesn't exist or couldn't be found and the legal types thought they were hooped without his testimony.
During my undergrad, unofficial department policy was that no paper received an A+ unless it could be published, as is, in a major scholarly journal. Needless to say, there weren't any handed out.
I'm not up on California law, but this part of the claim looks like a PR stunt.
Winning is beside the point - redo it until you get a fair trial with no major procedural errors. So long as you can't say the trial was fair and there were no major errors from the bench, no one really "won" and it deserves to be thrown out. If it was a fair trial and there were no errors, feel free to appeal your loss, but you'll lose on appeal and that'll be it.
Yes, interesting article, but that has nothing to do with this. Jurisdiction simpliciter as applied to private international law is hardly the issue - rather, we're dealing with the question of how to deal with contempt of court by foreign media who feel they can get away with it because they think they're beyond the reach of the other country's criminal courts, also, with simple ignorance that leads to inadvertant publication on the internet of information that can/will be accessed from a region where the publication ban is in effect.
You should read the reported comments of the judge and lawyers in this case - they're *not* happy, and mentioned some US journalists by name in the warning from the bench. Those people are walking on very thin ice. Don't forget that this is a preliminary inquiry - the comparable procedure in the US is the Grand Jury... which is behind closed doors and not open to the public, and if you publish anything about grand jury evidence or deliberation, you're going to jail for a long time. In Canada, our system is actually more open. The public can attend and see that justice is being done - it removes the star chamber feel of grand jury deliberations, because the general public can attend and make sure things are legit - but this doesn't mean that you wouldn't taint the jury pool if salacious details were widely reported. Don't forget, this isn't a full trial right now - the prosecution has a laughably low burden to have this set down for trial, and will show just enough evidence to get there. The defence may not even try to fight back - why give anything away? The prelim is really a tool for the defense to get a free go round, seeing the prosecution's case and crossexamining their witnesses. The defendant doesn't really get to present a defense or explain - if there's any evidence at all, he'll be bound over for trial. As a result, any reporting would present a very skewed picture of the legal landscape facing the defendant. The system remains in place because the defense bar fights tooth and nail to keep it, and because occasionally charges *are* dismissed, and that makes the cost of the prelim in the other cases worth it by saving the cost, embarassment and waste of time of trying an obviously innocent person.
In the real world, it's more like handing you a ten page contract, with a clause on page one saying "We will not do X" and having a sub-sub-sub clause on the eighth page say "Notwithstanding the clause on page one, we will do X under the following situations..."
For a unilateral contract (contract of adhesion, if you prefer), in the Anglo-Canadian common law world, Tilden v. Clendenning says the person presenting you with the contract should bring any unusual terms to your attention, if they intend to rely on them later. OTOH, that case involved rental car contracts and was premised on people not having time to read them over carefully before signing - I don't know if they'd apply it to click throughs read in the privacy of one's own home.
IANAL, and even if I was, YMMV.
And? Make the tax the responsibility of the purchaser. If you put a line on the income tax form for total out of state internet purchases that would add this to the yearly bill, people could pay or else lie and risk going to prison.