Your premise is wrong. The barrier between us and other animals is not artificial. We are not like other animals. If you want a simple way to convince yourself that animals are not self-aware, put them in front of a mirror.
First, you have to give a non-tautological definition of the word "conscious". Believe it or not, this is still a task in progress. The best experts at it still often get laughed out of the house when they speak to professional neuroscientists.
I've never heard that quote before, but I've always wondered why lawyers don't represent themselves.
First, because it's very difficult to objectively consider the facts when representing himself. Arguments are like chess games: one needs to consider moves and counter-moves. And when representing oneself, it is much more difficult to see the arguments from the opposing side's point of view. Second, because the personal investment in one's opinion makes it very difficult to maintain civil composure expected of a court argument.
I think you misunderstood what the guy said. He didn't say that his friend was binging (as in binge drinking). He said the guy was addicted (as in an alcoholic). You think you can stop someone from being an alcoholic by breaking all the booze he has laying around?
You can't help someone else break an addiction. They have to want to do it themselves. And they have to do so desperately. For most people that means that they have to reach bottom and then make a choice of whether they have something more meaningful in their lives to move to or to stay at the bottom with their addiction. If you want to help your friend, don't enable the addiction (don't give him money, or whatever resources he may ask of you). But from time to time offer him to do other things together. This will keep reminding him that there are other things in life that he enjoys doing.
in how it effects cognition. it only stands to reason that as more input needs to be processed, less of the brain is dedicated to thinking. yes, i am aware that those happen in different parts of the brain, but the number of items occupying attention span doesn't grow. so if attention is occupied by extra senses, less attention is given to active pre-frontal processing. this would validate that common notion that people who are constantly occupied with processing communication devices are in fact less able to handle complicated ideas.
generally cash means some liquid assets. given how good microsoft's credit rating must be, they can probably get more out of their liquid investments than they have to pay in bond payments -- especially in a bond market where a few of the bigger bond issuers are not around anymore leaving the pension plans scrapping for some place to park their money.
First of all, trespassing is a criminal action. And it's resolved through criminal prosecution. And second, I don't think I am missing the forest for the trees. I've said that the government in defining what is actionable might be guided by the considerations of public policy (that's the forest).What I keep insisting on is that during the handling of any one suit the court may not be guided by such considerations (those are the trees).
In other words, it's a push and pull. The plaintiff wants to be able to sue for any damage. That's the the push. The government allows only certain damages to be recoverable. That's the push back. Once the position is established where it's clear that the government has allowed this type of damage to be recoverable, then the only considerations that become relevant are the amount of the damage caused (and, of course, whether or not the defendant was the one to cause the damage). The consideration that the court may not take into account is how this effects public policy. If the court took those considerations into account, it would overstep its authority.
As for the comments about setting to avoid precedent, those are strategic decisions made in order to avoid certain damages from being actionable. Here's what I am arguing: there is an intended process for recovery of damages and everything else is just mechanics of that process. The government gets to decide when that process is applicable. But the actors involved in the process might resort to all kinds of (often far fetched or "creative") machinations.
Your argument essentially boils down to "the devil is in the details" of that process. And sometimes the details might derail the process from its intended result (recovery of damages) so far that the intended result might be lost from the view. Alright, but my argument is "the process' intended result is recovery of damages and anything else cannot be considered as its intended effect by those involved in the process". Let me go further. If you were able to convince a court that a certain law suit had no intentions of recovering damages and was only intended to set public policy, the court would appropriately have to dismiss the suit. But I am not saying that a suit brought to recover damages would have to be dismissed if it were shown that its effect will be change in public policy, of course ("if A, then B" does not imply "if B, then A").
Corollary to that, effect on public policy is not a requirement for bringing a suit. So the fact that you can sue a soup kitchen for poisoning comes out of the fact that it damages you -- not out of the fact that it would be good public policy for soup kitchens to follow certain government-established standards.
Oh, and here's a an even better tidbit I just found in Geofroy v. Riggs: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [p18] government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."
And this is from Reid v. Covert: This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.
I see how it can be read from the "... any Thing in the Constitution" clause, but it's simply not the case. Reid v. Covert explicitly established that the Constitution supersedes treaties (even ratified treaties).
And you simply do not seem to get the clear fact that many laws concerning lawsuits about copyright, trademark, patents, and discrimination are blatantly matters of public policy.
I see you are riding the argument high. So, first of all, take it easy.
Second, yes, I do agree that the concept of punitive damages bridges line between civil and criminal law. Because, as the very name says, it's punitive. The cases where suing a public official is not possible are most likely there because the courts don't have jurisdiction. In other words, courts have limited power over other branches of the government. It's part of the structure of separation of powers. As for laws that allow suits over specific actions that are deemed to be matters of public policy, it's still done on the theory that those actions cause damages that suits are there to restore. What I am saying is this: while the extent to which one can sue is often effected by public policy, each individual suit's purpose is solely (ok, with the exception of punitive damages) to restore something that was lost to the plaintiff.
Let me give an example to demonstrate what I mean. It's been decided for public policy reasons that persons fired for being gay can sue their ex-employers. But if a person who was fired went out and got a higher-paying job a week after, they would have a very difficult time showing that they incurred any damages (other than a potential humiliation but adults are expected to be able to handle that, so that alone is not worth much in monetary terms). If, however, they got depressed and weren't able to find a steady job for a year, then they could sue for a year's worth of wages plus the cost of medical treatment of the depression. If the suits existed for the sole purpose of shaping policy, then the person would be able to sue for the same amount regardless of what actually happened to them afterward.
Clearly, not all damages are recoverable (nor should be) through law suits. If a person gets depressed because of a relationship going sour, they can't sue their ex. So the government does have a place in defining the line of what can and what can't be actionable. And, yes, it does use public policy considerations in defining this line. But the very reason civil suits exist is to have a civil way to recover compensation for damages from those cause the damages. Because the only alternative is recovering those damages in an uncivil manner (hiring goons, for example).
Personally, I'm of the opinion that the law should never prevent someone from waiving any of their rights should they happen make a reasonably informed choice to do so.
Well, to humor this hypothetical, do you, then, believe that people should be able to sell themselves into slavery?
Punitive damages are clearly the exception to the main mandate of torts. The rest of the examples that you mention are details of what constitutes the damages that are recoverable through suits. These examples may have been arrived at through public debate and codified for the purpose of shaping the public policy. But the fact remains that when one party brings a suit, the court has to treat it as if it were an exercise in recovering damages -- not as if any one individual suit is an exercise in shaping policy. Some of the other examples of allowed torts are listed in http://en.wikipedia.org/wiki/Tort.
I am pretty sure that the only reason you can sue for pain and suffering is on the theory that your ability to peacefully enjoy your life was taken away from you. Not sure that someone can give you cancer, but if you get hit in the balls and don't suffer any consequences beyond a few minutes of pain, then you law suit options will be very, very limited. You will be able to charge them with a crime though.
As to the moronic comment about the car thief, learn the difference between civil and criminal law and then come back, OK?
I am fully aware of the difference. Please, take your medication now.
In the food poisoning case you've suffered pain and discomfort.
You don't sue because you've been wronged. You sue because something of yours was taken away without your consent. If the law removes your ability to consent to certain risks (such as the risks associated with using untested software), then you'll be able to sue for the losses you would incur as a result of using untested software.
Ask for a refund.
The amount of damage you suffer is not limited to the price of the product when it comes to recovering damages through law suits. You have $0 involved in a transaction with a car thief. But you can still sue him for the damage he caused to your car.
This is a common fallacy. The statements of the kind "suits are meant to" and "the role of this particular branch of the government is" are meant to inform as to the mandate -- not to actual performance. To err is human. So most institutions fail to fully live up to their mandate.
It would not stifle innovation. Indeed, the opposite would happen.
There is no doubt that it would stifle innovation. It would increase the cost of innovation and thus make it happen less. That's not an issue. The issue is whether a sacrifice in innovation is worth the gain in stability.
you can't sue someone for eating something that wasn't labelled as food
I can see a potential law suit of toy manufacturers over a number of children eating of some particular toy.
Whether a car manufacturer is liable for someone stealing from the car isn't clear
It's also irrelevant. A car is not intended as a safe for storage of valuables. Software can cause loss when used as intended. Or, I should say, as reasonably intended. If you buy a word processor that has "under no circumstances should this be used for word processing despite the fact that there are reports that it might be" warning, then you might avoid a law suit. Any warning short of that can be made void by law.
Honestly, I think this law will cause more problems than it will solve. I think a much simpler law (which would also make monopolies much harder) would be that any commercial exchange which involves software must have software source code accompany the software. Basically, total transparency. I realize that there is an issue of wanting to preserve competitive advantage, but I am also pro-software patents, so go figure.
but I'm pretty sure that if a law and a treaty disagrees, the treaty is considered valid.
Actually, no, not in the US. For example, the UN charter was established through an international treaty. But US doesn't see UN proclamations, decisions, etc. as anything but advisory. Since US Congress (the legislature) has the power of the purse, all government expenses are appropriated by laws. US from time to time simply doesn't pay its UN dues. There is no recourse. If the treaty that established the UN charter were above the US law, there would be a way for the UN to recover the dues. But as long as Congress doesn't pass a law handing over that money, UN gets nothing.
But equally, people should be free to say what use their product is intended for.
As a number of people pointed out, there are exceptions to this. Basically, laws can restrict what types of agreements can be entered into. The most extreme example of this is that you can't enter into a contract to be a slave. A less extreme example would be a law that voids all "no warranty" clauses of software licenses.
I also fail to see how causing injury is comparable to alleged liability of Microsoft.
Law suits are a mechanism for recovering damages caused by the other party. You can't sue someone for wrong doing (that's what criminal laws are for). What you sue for is the damages that the wrong doing (or negligence or even plain stupidity as long as the counter party was actually the cause of it). The money you win in a law suit is meant to compensate you for the damages you suffer. In this respect both poisoning and bad software are similar.
the problem is loss caused by downtime
What if it's loss of data? Besides, time is worth money, too. And a car breaking down due to wear and tear is one thing. A car breaking down because of a faulty design is quite another. You can sue in the latter case but not the former.
Constitution/International treaties > laws > government regulation > private contract > untested in court,
Could you site the case? Because I am fairly sure "the law of the land" doesn't make it on par with the Constitution. All laws passed by Congress are laws of the land. Unless it explicitly says that treaties have the power to modify the constitution, they don't have such power.
the fact that you can sue is not related to public health. i didn't say you'd get fined. sued. suits are brought to recover damages caused by the counter party -- not to shape public policy. in other words, they are a way of settling disputes between the two parties involved. so the analogy still holds.
every software license worth its salt has this clause. laws can make certain parts of agreements void. for example, you can't enter into a contract to be a slave.
Slashdot Mirror
Your premise is wrong. The barrier between us and other animals is not artificial. We are not like other animals. If you want a simple way to convince yourself that animals are not self-aware, put them in front of a mirror.
First, you have to give a non-tautological definition of the word "conscious". Believe it or not, this is still a task in progress. The best experts at it still often get laughed out of the house when they speak to professional neuroscientists.
I've never heard that quote before, but I've always wondered why lawyers don't represent themselves.
First, because it's very difficult to objectively consider the facts when representing himself. Arguments are like chess games: one needs to consider moves and counter-moves. And when representing oneself, it is much more difficult to see the arguments from the opposing side's point of view. Second, because the personal investment in one's opinion makes it very difficult to maintain civil composure expected of a court argument.
I think you misunderstood what the guy said. He didn't say that his friend was binging (as in binge drinking). He said the guy was addicted (as in an alcoholic). You think you can stop someone from being an alcoholic by breaking all the booze he has laying around?
You can't help someone else break an addiction. They have to want to do it themselves. And they have to do so desperately. For most people that means that they have to reach bottom and then make a choice of whether they have something more meaningful in their lives to move to or to stay at the bottom with their addiction. If you want to help your friend, don't enable the addiction (don't give him money, or whatever resources he may ask of you). But from time to time offer him to do other things together. This will keep reminding him that there are other things in life that he enjoys doing.
Why would a took maker be responsible for how the tool is used?
in how it effects cognition. it only stands to reason that as more input needs to be processed, less of the brain is dedicated to thinking. yes, i am aware that those happen in different parts of the brain, but the number of items occupying attention span doesn't grow. so if attention is occupied by extra senses, less attention is given to active pre-frontal processing. this would validate that common notion that people who are constantly occupied with processing communication devices are in fact less able to handle complicated ideas.
generally cash means some liquid assets. given how good microsoft's credit rating must be, they can probably get more out of their liquid investments than they have to pay in bond payments -- especially in a bond market where a few of the bigger bond issuers are not around anymore leaving the pension plans scrapping for some place to park their money.
First of all, trespassing is a criminal action. And it's resolved through criminal prosecution. And second, I don't think I am missing the forest for the trees. I've said that the government in defining what is actionable might be guided by the considerations of public policy (that's the forest).What I keep insisting on is that during the handling of any one suit the court may not be guided by such considerations (those are the trees).
In other words, it's a push and pull. The plaintiff wants to be able to sue for any damage. That's the the push. The government allows only certain damages to be recoverable. That's the push back. Once the position is established where it's clear that the government has allowed this type of damage to be recoverable, then the only considerations that become relevant are the amount of the damage caused (and, of course, whether or not the defendant was the one to cause the damage). The consideration that the court may not take into account is how this effects public policy. If the court took those considerations into account, it would overstep its authority.
As for the comments about setting to avoid precedent, those are strategic decisions made in order to avoid certain damages from being actionable. Here's what I am arguing: there is an intended process for recovery of damages and everything else is just mechanics of that process. The government gets to decide when that process is applicable. But the actors involved in the process might resort to all kinds of (often far fetched or "creative") machinations.
Your argument essentially boils down to "the devil is in the details" of that process. And sometimes the details might derail the process from its intended result (recovery of damages) so far that the intended result might be lost from the view. Alright, but my argument is "the process' intended result is recovery of damages and anything else cannot be considered as its intended effect by those involved in the process". Let me go further. If you were able to convince a court that a certain law suit had no intentions of recovering damages and was only intended to set public policy, the court would appropriately have to dismiss the suit. But I am not saying that a suit brought to recover damages would have to be dismissed if it were shown that its effect will be change in public policy, of course ("if A, then B" does not imply "if B, then A").
Corollary to that, effect on public policy is not a requirement for bringing a suit. So the fact that you can sue a soup kitchen for poisoning comes out of the fact that it damages you -- not out of the fact that it would be good public policy for soup kitchens to follow certain government-established standards.
Oh, and here's a an even better tidbit I just found in Geofroy v. Riggs: "The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [p18] government, or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."
And this is from Reid v. Covert: This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that, when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null .
I see how it can be read from the "... any Thing in the Constitution" clause, but it's simply not the case. Reid v. Covert explicitly established that the Constitution supersedes treaties (even ratified treaties).
And you simply do not seem to get the clear fact that many laws concerning lawsuits about copyright, trademark, patents, and discrimination are blatantly matters of public policy.
I see you are riding the argument high. So, first of all, take it easy.
Second, yes, I do agree that the concept of punitive damages bridges line between civil and criminal law. Because, as the very name says, it's punitive. The cases where suing a public official is not possible are most likely there because the courts don't have jurisdiction. In other words, courts have limited power over other branches of the government. It's part of the structure of separation of powers. As for laws that allow suits over specific actions that are deemed to be matters of public policy, it's still done on the theory that those actions cause damages that suits are there to restore. What I am saying is this: while the extent to which one can sue is often effected by public policy, each individual suit's purpose is solely (ok, with the exception of punitive damages) to restore something that was lost to the plaintiff.
Let me give an example to demonstrate what I mean. It's been decided for public policy reasons that persons fired for being gay can sue their ex-employers. But if a person who was fired went out and got a higher-paying job a week after, they would have a very difficult time showing that they incurred any damages (other than a potential humiliation but adults are expected to be able to handle that, so that alone is not worth much in monetary terms). If, however, they got depressed and weren't able to find a steady job for a year, then they could sue for a year's worth of wages plus the cost of medical treatment of the depression. If the suits existed for the sole purpose of shaping policy, then the person would be able to sue for the same amount regardless of what actually happened to them afterward.
Clearly, not all damages are recoverable (nor should be) through law suits. If a person gets depressed because of a relationship going sour, they can't sue their ex. So the government does have a place in defining the line of what can and what can't be actionable. And, yes, it does use public policy considerations in defining this line. But the very reason civil suits exist is to have a civil way to recover compensation for damages from those cause the damages. Because the only alternative is recovering those damages in an uncivil manner (hiring goons, for example).
Personally, I'm of the opinion that the law should never prevent someone from waiving any of their rights should they happen make a reasonably informed choice to do so.
Well, to humor this hypothetical, do you, then, believe that people should be able to sell themselves into slavery?
Punitive damages are clearly the exception to the main mandate of torts. The rest of the examples that you mention are details of what constitutes the damages that are recoverable through suits. These examples may have been arrived at through public debate and codified for the purpose of shaping the public policy. But the fact remains that when one party brings a suit, the court has to treat it as if it were an exercise in recovering damages -- not as if any one individual suit is an exercise in shaping policy. Some of the other examples of allowed torts are listed in http://en.wikipedia.org/wiki/Tort.
As to the moronic comment about the car thief, learn the difference between civil and criminal law and then come back, OK?
I am fully aware of the difference. Please, take your medication now.
In the food poisoning case you've suffered pain and discomfort.
You don't sue because you've been wronged. You sue because something of yours was taken away without your consent. If the law removes your ability to consent to certain risks (such as the risks associated with using untested software), then you'll be able to sue for the losses you would incur as a result of using untested software.
Ask for a refund.
The amount of damage you suffer is not limited to the price of the product when it comes to recovering damages through law suits. You have $0 involved in a transaction with a car thief. But you can still sue him for the damage he caused to your car.
This is a common fallacy. The statements of the kind "suits are meant to" and "the role of this particular branch of the government is" are meant to inform as to the mandate -- not to actual performance. To err is human. So most institutions fail to fully live up to their mandate.
It would not stifle innovation. Indeed, the opposite would happen.
There is no doubt that it would stifle innovation. It would increase the cost of innovation and thus make it happen less. That's not an issue. The issue is whether a sacrifice in innovation is worth the gain in stability.
you can't sue someone for eating something that wasn't labelled as food
I can see a potential law suit of toy manufacturers over a number of children eating of some particular toy.
Whether a car manufacturer is liable for someone stealing from the car isn't clear
It's also irrelevant. A car is not intended as a safe for storage of valuables. Software can cause loss when used as intended. Or, I should say, as reasonably intended. If you buy a word processor that has "under no circumstances should this be used for word processing despite the fact that there are reports that it might be" warning, then you might avoid a law suit. Any warning short of that can be made void by law.
Honestly, I think this law will cause more problems than it will solve. I think a much simpler law (which would also make monopolies much harder) would be that any commercial exchange which involves software must have software source code accompany the software. Basically, total transparency. I realize that there is an issue of wanting to preserve competitive advantage, but I am also pro-software patents, so go figure.
but I'm pretty sure that if a law and a treaty disagrees, the treaty is considered valid.
Actually, no, not in the US. For example, the UN charter was established through an international treaty. But US doesn't see UN proclamations, decisions, etc. as anything but advisory. Since US Congress (the legislature) has the power of the purse, all government expenses are appropriated by laws. US from time to time simply doesn't pay its UN dues. There is no recourse. If the treaty that established the UN charter were above the US law, there would be a way for the UN to recover the dues. But as long as Congress doesn't pass a law handing over that money, UN gets nothing.
But equally, people should be free to say what use their product is intended for.
As a number of people pointed out, there are exceptions to this. Basically, laws can restrict what types of agreements can be entered into. The most extreme example of this is that you can't enter into a contract to be a slave. A less extreme example would be a law that voids all "no warranty" clauses of software licenses.
I also fail to see how causing injury is comparable to alleged liability of Microsoft.
Law suits are a mechanism for recovering damages caused by the other party. You can't sue someone for wrong doing (that's what criminal laws are for). What you sue for is the damages that the wrong doing (or negligence or even plain stupidity as long as the counter party was actually the cause of it). The money you win in a law suit is meant to compensate you for the damages you suffer. In this respect both poisoning and bad software are similar.
the problem is loss caused by downtime
What if it's loss of data? Besides, time is worth money, too. And a car breaking down due to wear and tear is one thing. A car breaking down because of a faulty design is quite another. You can sue in the latter case but not the former.
Constitution/International treaties > laws > government regulation > private contract > untested in court,
Could you site the case? Because I am fairly sure "the law of the land" doesn't make it on par with the Constitution. All laws passed by Congress are laws of the land. Unless it explicitly says that treaties have the power to modify the constitution, they don't have such power.
the fact that you can sue is not related to public health. i didn't say you'd get fined. sued. suits are brought to recover damages caused by the counter party -- not to shape public policy. in other words, they are a way of settling disputes between the two parties involved. so the analogy still holds.
there is no warranty for this free software
every software license worth its salt has this clause. laws can make certain parts of agreements void. for example, you can't enter into a contract to be a slave.
Going to medical school.
umm... to avoid being sued?