But who sets the application's security context? The user, of course.
(You might argue the administrator sets the security context of the application, and that would be correct; but in this case, the administrator and the user are one and the same.
I realize there exists a separate paradigm where you have a competent administrator sitting on top of an incompetent user and basically 'screening' what happens- in that case, indeed, the 'user' we are referring to is competent and therefore able to provide the security context as appropriate.)
Sure you could. Some of us do that right now- I have a VM running with a bare-bones Windows XP installation for IE and Firefox.
But this suffers problems. Namely, that if anything from the sandbox can't get out and harm the main system, you... can't get anything out of the sandbox.
The problem, as I said, is that programs run in the user's security context. It's perfectly possible to limit the capability of userland applications, but this does little good from a user's perspective; the user's data also resides in userland, and is the valuable part of the system. They don't really care if the kernel is still working if all their data is hosed.
Ultimately, as long as the user can access their data, so can a hostile program, so long as the user is willing to run it.
The only way to prevent this, essentially, is to prohibit anything from being deleted or modified- just write a new copy of whatever data you change, and write a transactional flag that stats that deleted data has had the 'deleted' attribute applied to it. Basically, an end-to-end journal of all file operations. And that'd be an enormous storage problem. Perhaps it is a solution in a handful of cases- if you can lock all the system files so they can't be written or modified and then ensure the user's data is never deleted or modified, only added to... maybe that's the solution. But it's not one I'd want to run at home, certainly.
Of course that's true in general (Java, perhaps?) but that's not really the issue, although it is an argument for systems diversity in general as opposed to any kind of monoculture.
The issue is that users are stupid. They will remain stupid regardless of what kind of operating system you plunk them in front of, and for my money I'd much rather Microsoft (or antivirus vendors or whomever else) spend their time working to fix actual holes- security flaws that can be exploited without exploiting the vulnerability of the user's stupidity.
Because, to be honest, the security flaw that is the user's intelligence or lack thereof is not something that Microsoft can, or should, fix.
It's not a Windows problem, per se; the fact that it installs malware on Windows computers is functionally irrelevant.
PEBKAC- Problem Exists Between Keyboard and Chair.
There's absolutely no reason such a functionally identical attack would not work against any operating system you care to name, or even a theoretically perfect operating system were one to be invented.
Programs the user executes run in the user's security context. If you can trick the user, you can do whatever the user can do, or in this case, install malicious software.
The laws against theft are every bit as absolute as the Constitution.
Rubbish. Have you read any of the laws against theft lately? Let's see. California Penal Code section 484. up to about section 500 cover theft. They're not only far more precise (in that they more exactly define what situation they are to be applied toward), but there are exceptions defined, there are interpretative civil procedures codes that are relevant, and so on.
And on top of that, you can slap on Supreme Court precedent that materially alters the mechanism by which those laws are applied. No law is absolute because it was written by an entity which is not absolute. Our legal system recognizes this, and makes provision for such.
What it says is absolute, unless amended. There can be exceptions, but they have to be made law to mean anything. I can't just steal from the local Wal-Mart, and get away with it by claiming (as you ludicrously claim about the Constitution) that it's merely a guideline, and because I found a situation where (in my view) it's reasonable to have an exception, I can just ignore the law. There may well be a need for an exception, but that exception needs to be written into the law before I can utilize it.
Pure bullshit! I don't know who's been upmodding you, but they obviously know nothing about the law. The judicial process is all about arguing exceptions to it that don't exist before you argue them. That's how precedent is created. Of course you can argue exceptions that don't exist!
It is not impossible for a great many people to be wrong, even for a very long time. I remind you that, until a certain point in our world's history, one could have made the same exact defense for the doctrine that the world was flat.
Again, rubbish. People have known the Earth was round for millennia; as long as we've had civilization and codified rational thought.
It may not be in our lifetime, or even near our lifetime, but it will happen if enough people have this false belief that the constitution of a government is not binding upon it. It's only a matter of time.
I've snipped out your ideological bullshit, but once we get past that, I never said the constitution was not binding upon the government. I said that the constitution is a self-imposed limit on the exercise of sovereign power.
A sovereign, by its very definition, has the exclusive right of governance. By that very definition and that very right, it cannot be bound by any entity superior to itself; it must choose to be so bound to any restrictions imposed upon it. The same is true here. The United States can alter the constitution at will, because it is not some document which is handed down to it from on high; it is a document that the sovereign has committed itself to following.
There are, in fact, two ways to alter the constitution; one is more complicated than the other. The former involves voting and this and that (again, rules set down by the body that it must follow; it has the ability to change those rules at will), but the secondary method exists because the constitution creates within itself an ability to be changed; that is, it creates for itself arbiters of interpretation. Whatever those interpreters decide the document to say is what, in fact, it says; however, there is no requirement in the document that they be bound to any strict proceeduralist interpretation of the document itself, and they have never shown themselves to be so bound.
Moreover, get off your high horse. There are plenty of governments across this planet with no constitutions at all, or with constitutions that grant the government the power to ignore them at will (The United Kingdom and Canada, respectively, for those of you not keeping track).
Neither of those governments are any more tyrannical than the government of the United States, and some might say, in fact, that they are less so.
Of course they can. Have you ever been stopped for speeding and let off with just a warning?
Have you ever been arrested for jaywalking? I bet not.
Why? Because law enforcement agencies and prosecutors have always had discretion to refuse to prosecute if they feel that doing so is not in the public interest.
Ah, so we can do that now? Just say that laws aren't valid laws and then ignore them? Fuckin' cool, man! Why didn't anyone tell me this sooner? For starters, I'm gonna go ahead and say that the law prohibiting me from taking your (or anyone's for that matter) stuff is not a valid law--it's black and white, after all, and we don't live in a black and white world.
Except such a law is not absolute. The fact that you believe it is does nothing more than showcase your own ignorance.
As I said, it's not just my word against yours that the constitution does not constitute valid law- it is the entire history of jurisprudence.
If the Consitution isn't a valid law, not one single law ever passed by our government is a valid law, since they were given the authority to pass said laws by the constitution.
What a shockingly ignorant grasp of political theory. The constitution does not grant the power to create law; in fact, it does exactly the opposite. It is a self-imposed limit on the exercise of sovereign power.
Your arguments that the Constitution can be ignored showcases your complete and total ignorance of the system of government that we have. Not that I'm gonna stop you--I mean, hey, go ahead and do what you gotta do, that's your right. But don't blame the rest of us when we sit around laughing at your sheer ignorance.
You do that, and while you're at it, look up some of the decisions of the United States Supreme Court- say DC v. Heller. That, after all, is a decision that blatantly ignores the constitution as it is written. Not that that stopped the Supreme Court, of course.
The Constitution disagrees with you. From Article VI, Clause 2:
The Constitution, which I argue is not a valid law, disagrees that it is a valid law. Well, isn't that an interesting conundrum... let me see, history backs me up and not the constitution. Isn't that odd?
The Bill of Rights are a part of the Constitution, and hence they are law. They are neither statutory nor regulatory law, and hence do not spell out all the details of what is and is not allowed, but they were never intended to perform that function. Their purpose is to provide a framework within which statutory and regulatory law may be constructed.
Except that statutory and regulatory law are not created within that framework. That makes them mere suggestions, nothing more and nothing less.
No, four could read "Congress shall make no law..." and understood that McCain Fiengold was clearly infringing. And five managed to parse "shall not be infringed." and rule the DC gun ban out of bounds.
Rubbish. I doubt you even read either of the decisions you refer to- because neither of them can be interpreted in the way you believe. In fact, in the latest Supreme Court case regarding the DC gun ban, every single justice went ahead and said that gun laws are not necessarily unconstitutional, despite the black-letter law.
And now it is clear, we won't be agreeing on much because you serve the forces of darkness. You can't just "ignore" the Bill of Rights and remain a nation of laws. What you pine for is a dictator who will make all of your decisions for you.
Again, rubbish. I can indeed ignore the Bill of Rights and remain a nation of laws, because it's not law. The Bill of Rights is a set of handy suggestions, but as law it fails miserably- and as I've said, every single Supreme Court justice since, well, practically forever, agrees.
And we have the answer to how so many educated Supremes can fail to read the Constituition and not get the right answer. They understand perfectly, but being Socialists they simply don't give a damn what it says.
Of course they don't. The constitution is a black and white document, but we don't live in a black and white world. Necessarily, the constitution is overrated and must be ignored. Rational, reasonable people accept this. Many of them even made it to the Supreme Court.
Anyway, what the hell does this have to do with socialism? Are you unable to separate economic theory from political, or are you just trolling?
Note that it IS perfectly acceptable to disagree with the 2nd Amendment, private possession of arms, etc. and still be an American. But you can only do so by first proposing the repeal of the 2nd Amendment. Remember that the Founding Fathers were very wise men, but they were not God Kings handing down the law on graven tablets, thus they realized that their laws might need to be adjusted for differing times, and the procedure for Amendments. Done that way it doesn't turn us into a nation of men instead of laws.
Of course you will repeal the 2nd Amendment only after I have fought you to my last breath and last dollar.
I don't need to repeal it. Doing so requires far too much effort. The 2nd Amendment isn't worth the paper it's printed on; why would I attempt to have it overturned? All I need to do is curb its interpretation, and that is perfectly sufficient. It also requires only five people.
Not necessarily; doing so requires an effort entirely disproportionate with the consequences of the fraud you committed. The State shouldn't prosecute you because there's no reason to- you didn't get anything out of it and neither will the State.
In this case, however, that's not true. This is where prosecutor's discretion does come into play.
Ironically, then, none of the justices on the Supreme Court since... oh, ever, could parse simple English phrases either.
Either every single Supreme Court justice since ever is illiterate or they're all evil.
The answer is, no, they're neither. They just realize the reality of the situation, which is that the Bill of Rights is simply wrong in that respect and you need to ignore it and get onto more pressing matters.
I think there are a lot of flaws in our adversarial system. I was hoping the last time I was in Germany to watch a court proceeding there, but unfortunately I fell ill and was unable to go.
The issue I think with Amicus briefs, is that while you say that they help prevent some of the problems with unequal representation, I don't think that's true. People only generally get amicus briefs submitted in their cases when those cases attract attention- and those cases that attract attention are very likely to also attract high-powered lawyers (if only for the publicity).
The average little guy who goes to court doesn't get ten law professors to file Amicus briefs in his case, which sort of minimizes that effect, I imagine.
I suppose it boils down to this: I don't mind the Court going out and conducting an investigation on its own; even if there are biased sources out there, the Court has a huge amount of material to sift through and can come to its own decision on the validity of that material. I don't mind amicus briefs that are filed with the specific intention of informing the Court. I don't really mind if the parties who submit this kind of amicus briefs actually want to get themselves in as parties to the action so they can vigorously defend themselves.
I do mind, I think, when parties tend to back-door their way into litigation. That isn't to say, of course, that this is the only way that happens; I know plenty of other ways. I'm aware of a case where a gentleman has three different judicial orders preventing him from appearing before the court at all without leave thereof, and yet he's gotten around those orders more times than I can count.
I think you brought forward the difference yourself- 'is it appropriate for third parties to present analysis of any kind to the court' is different from 'can people write opinionated analysis?'.
The answer in the latter case is, of course, yes. In the former, I would argue no; that's what the parties to the action are for. They're there to present their cases, and nobody else should be doing so unless they can get themselves added to the action as parties.
As for crowd-sourcing, I think that's a reasonable argument... but I would turn around and point to the group polarization phenomenon. People who are surveyed in a vacuum are likely to be more 'realistic' for lack of a better term than those who are involved in a matter with a group of other people who have differing opinions- the natural reaction is to become more radical in your own opinion to counter it.
I wouldn't mind at all if the judge went to the law review and had his clerks flip fifty coins to decide on half that number of randomly-selected journal articles about the issue. At least then s/he can be said to be going out on their own and conducting investigation (in much the style of the inquisitorial court system, vaguely.)
I'm not sure that's true at all. For example, I often go to the Law Library to look up vague topics related to cases- for example, I was there today looking up the law of evidence as it relates to hearsay and exceptions to the hearsay rule. The work as presented in the text was certainly well written, wasn't useless at all, and despite that was entirely unbiased when related to the case at hand (for obvious reasons).
It's possible to write a legal treatise about specific points of law without making it obvious you're supporting a side- essentially, bringing up directions, trends, case law, other reference works, and so on. And I think that, essentially, was what the amicus was supposed to represent- not to mention other matters (than law) which the Court would not be well-versed upon, like the mechanics of soil-irrigation or whatever the case was about; in those cases, the amicus brief would merely explain the specific matters relating to the topic for the Court.
Yeah, I know... but I think that, as a question of law, is really too broad a topic. I wouldn't mind a nice brief (and as I said in a sibling comment, I haven't read the briefs, so keep that in mind) that merely sets out the qualifications for how one might mis-instruct a jury and how the elements of this case press upon those elements, without drawing a conclusion- because, to be perfectly frank, I feel that is the job of the Court and the Court alone. Counsel for the parties are allowed to propound a specific view of the facts; the Court decides on one- but an Amicus should just bring forward information.
All that said, let's be honest- all amicus briefs are filed in support of one side or another. Nobody goes to the trouble, expense, and time of filing one just to turn around and say "Oh well, we don't care who wins just so long as the Court knew what they were talking about!"
I just really dislike intervenor status... because it's a way for people to jump in on the sides of an argument they really shouldn't be in in the first place. You might say (and people do) that they do have a right to be in the argument because their rights will be unfairly prejudiced if the conclusion goes one way or another... and I think that's the excuse that many 'friends of the court' use.
But in that case, they're not friends of the court- they're plaintiffs or defendants, and they should join the action as one or the other if they feel that way. The problem is, I don't doubt most of them fail to meet the basic qualifications to do so. In that respect, then, I'm not sure they really do have sufficient status to back-door their way in by claiming to be friends of the court.
Now, I suppose I should point out that this is my opinion, and not the way things work, but that should really be obvious.
Or perhaps they will incorporate some of its information.
How should I know? I haven't read it.
The difficulty with these briefs is that everybody's got an angle. Everybody wants something, and to be perfectly honest, it's never 'good will toward mankind and advancement of the human race'- or if it is, that's only incidental to the primary purpose.
At least where the plaintiff and defendant stand is clear. Where 'friends' of the court stand is much less so, and for that reason I think they're being (not just here, but in general) and are abused.
The Court can decide what briefs it accepts or not.
Arguably, I think the briefs are misfiled and that the process of the amicus curiae is being abused; A good amicus brief should, in my opinion, not be filed in support of any particular side, but in defense if a particular argument of law or explanation of fact.
Tell me, how long does it take you to read through the source of every program you compile? Do you ever actually get around to compiling anything, at this rate? Do you have time for a real job?
To be honest, I am somewhat confused at that article.
it states:
The 9th Circuit also has a long-running streak as the most overturned, which went unbroken this year. The Supreme Court reviewed 22 cases from the 9th Circuit last term, and it reversed or vacated 19 times. By comparison, the Supreme Court reviewed only five cases, vacating or reversing four, from the next-busiest court of appeals, the 5th Circuit based in New Orleans.
In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit, it was reversed nearly five times more often.
Proportionately, then, the 5th Circuit had 80% of its reviewed cases overturned and the 9th Circuit 86%, which is not a terrible variance.
Now, he appears to be arguing that since the Supreme Court chose to review more of the 9th Circuit's cases than the 5th Circuit's, that should be relevant. I'm not sure that's true; one of the major reasons the Supreme Court chooses to review cases is because it feels it needs to resolve a circuit split or because a case is instrumental and requires deciding. Given the reputation of the 9th Circuit, I'm not really surprised that the Supreme Court would deal more often with cases arising from it; look at where it is and what kinds of cases have come up from the area, which includes Silicon Valley and Hollywood.
In any case, given that the total difference between the 9th and the 5th Circuits is approximately eighteen cases, I'm not terribly concerned. It'd be one thing to say that the 9th Circuit gets two hundred of its cases reviewed and the 5th Circuit gets five; that would indeed say something interesting (although I'm not entirely sure what it would say). Eighteen, with a relatively standard proportion overturned (57% between 1950 and 2006 out of a total of 604 cases, compared to 56% out of 418 for the 5th Circuit, see the sibling post's link) is, quite frankly, not concerning. (And, if you read in the article where it writes "In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit..." you will see that in fact, 604 is indeed 1/3rd more than 418, or very nearly, so it appears there isn't a problem in that respect either.)
(Also, because this is Slashdot, I'll argue my originally comment was technically correct depending on how you read it. I'm not even sure that it's incorrect in any way, but I didn't spend much time attempting to parse it in every possible way, so YMMV)
That has certainly been suggested on many occasions.
The problem is, that splitting the circuits like that is undoubtedly going to be a political decision. Because the 9th Circuit tends to generate a large proportion of its appeals from California (I believe it's about 50%) many advocates of the 9th Circuit remaining at its current size argue the calls to split it are politically motivated solely to reduce the 'damage' that can be done by the California-influenced [read liberal] circuit.
Arguably, the circuit is far too large and should be split. However, there is also a compelling judicial policy objective in minimizing the number of circuits as it minimizes the potential for 'circuit split'.
If you want my opinion (although most people don't, admittedly), I'd suggest splitting the circuits so that each circuit comprises, say, 5% of the US population and then there is a second level of appeals circuit which each hears appeals from four or five of the level one circuits (which leaves four or five lower level circuits to appeal to the Supreme Court).
However, before making an informed decision, I'd have to really go and look at the number of appeals. Remember, too, that ever since the Judiciary Act of 1925, the Supreme Court's number of cases has severely dropped off which makes the Circuits even more vitally important.
The Supreme Court has about 7000 appeals per year and hears about 100, I believe.
No. It doesn't. The 9th Circuit cases are indeed the most likely to be overturned, (not the same thing), but that is because there are more of them than any other circuit (the 9th Circuit covers about 20% of the US population).
Proportionately speaking, the 9th Circuit is about average for the chances of any individual case being overturned.
Slashdot Mirror
But who sets the application's security context? The user, of course.
(You might argue the administrator sets the security context of the application, and that would be correct; but in this case, the administrator and the user are one and the same.
I realize there exists a separate paradigm where you have a competent administrator sitting on top of an incompetent user and basically 'screening' what happens- in that case, indeed, the 'user' we are referring to is competent and therefore able to provide the security context as appropriate.)
Sure you could. Some of us do that right now- I have a VM running with a bare-bones Windows XP installation for IE and Firefox.
But this suffers problems. Namely, that if anything from the sandbox can't get out and harm the main system, you... can't get anything out of the sandbox.
The problem, as I said, is that programs run in the user's security context. It's perfectly possible to limit the capability of userland applications, but this does little good from a user's perspective; the user's data also resides in userland, and is the valuable part of the system. They don't really care if the kernel is still working if all their data is hosed.
Ultimately, as long as the user can access their data, so can a hostile program, so long as the user is willing to run it.
The only way to prevent this, essentially, is to prohibit anything from being deleted or modified- just write a new copy of whatever data you change, and write a transactional flag that stats that deleted data has had the 'deleted' attribute applied to it. Basically, an end-to-end journal of all file operations. And that'd be an enormous storage problem. Perhaps it is a solution in a handful of cases- if you can lock all the system files so they can't be written or modified and then ensure the user's data is never deleted or modified, only added to... maybe that's the solution. But it's not one I'd want to run at home, certainly.
Of course that's true in general (Java, perhaps?) but that's not really the issue, although it is an argument for systems diversity in general as opposed to any kind of monoculture.
The issue is that users are stupid. They will remain stupid regardless of what kind of operating system you plunk them in front of, and for my money I'd much rather Microsoft (or antivirus vendors or whomever else) spend their time working to fix actual holes- security flaws that can be exploited without exploiting the vulnerability of the user's stupidity.
Because, to be honest, the security flaw that is the user's intelligence or lack thereof is not something that Microsoft can, or should, fix.
It's not a Windows problem, per se; the fact that it installs malware on Windows computers is functionally irrelevant.
PEBKAC- Problem Exists Between Keyboard and Chair.
There's absolutely no reason such a functionally identical attack would not work against any operating system you care to name, or even a theoretically perfect operating system were one to be invented.
Programs the user executes run in the user's security context. If you can trick the user, you can do whatever the user can do, or in this case, install malicious software.
Rubbish. Have you read any of the laws against theft lately? Let's see. California Penal Code section 484. up to about section 500 cover theft. They're not only far more precise (in that they more exactly define what situation they are to be applied toward), but there are exceptions defined, there are interpretative civil procedures codes that are relevant, and so on.
And on top of that, you can slap on Supreme Court precedent that materially alters the mechanism by which those laws are applied. No law is absolute because it was written by an entity which is not absolute. Our legal system recognizes this, and makes provision for such.
Pure bullshit! I don't know who's been upmodding you, but they obviously know nothing about the law. The judicial process is all about arguing exceptions to it that don't exist before you argue them. That's how precedent is created. Of course you can argue exceptions that don't exist!
Again, rubbish. People have known the Earth was round for millennia; as long as we've had civilization and codified rational thought.
I've snipped out your ideological bullshit, but once we get past that, I never said the constitution was not binding upon the government. I said that the constitution is a self-imposed limit on the exercise of sovereign power.
A sovereign, by its very definition, has the exclusive right of governance. By that very definition and that very right, it cannot be bound by any entity superior to itself; it must choose to be so bound to any restrictions imposed upon it. The same is true here. The United States can alter the constitution at will, because it is not some document which is handed down to it from on high; it is a document that the sovereign has committed itself to following.
There are, in fact, two ways to alter the constitution; one is more complicated than the other. The former involves voting and this and that (again, rules set down by the body that it must follow; it has the ability to change those rules at will), but the secondary method exists because the constitution creates within itself an ability to be changed; that is, it creates for itself arbiters of interpretation. Whatever those interpreters decide the document to say is what, in fact, it says; however, there is no requirement in the document that they be bound to any strict proceeduralist interpretation of the document itself, and they have never shown themselves to be so bound.
Moreover, get off your high horse. There are plenty of governments across this planet with no constitutions at all, or with constitutions that grant the government the power to ignore them at will (The United Kingdom and Canada, respectively, for those of you not keeping track).
Neither of those governments are any more tyrannical than the government of the United States, and some might say, in fact, that they are less so.
Of course they can. Have you ever been stopped for speeding and let off with just a warning?
Have you ever been arrested for jaywalking? I bet not.
Why? Because law enforcement agencies and prosecutors have always had discretion to refuse to prosecute if they feel that doing so is not in the public interest.
Except such a law is not absolute. The fact that you believe it is does nothing more than showcase your own ignorance.
As I said, it's not just my word against yours that the constitution does not constitute valid law- it is the entire history of jurisprudence.
What a shockingly ignorant grasp of political theory. The constitution does not grant the power to create law; in fact, it does exactly the opposite. It is a self-imposed limit on the exercise of sovereign power.
You do that, and while you're at it, look up some of the decisions of the United States Supreme Court- say DC v. Heller. That, after all, is a decision that blatantly ignores the constitution as it is written. Not that that stopped the Supreme Court, of course.
The Constitution, which I argue is not a valid law, disagrees that it is a valid law. Well, isn't that an interesting conundrum... let me see, history backs me up and not the constitution. Isn't that odd?
Except that statutory and regulatory law are not created within that framework. That makes them mere suggestions, nothing more and nothing less.
Rubbish. I doubt you even read either of the decisions you refer to- because neither of them can be interpreted in the way you believe. In fact, in the latest Supreme Court case regarding the DC gun ban, every single justice went ahead and said that gun laws are not necessarily unconstitutional, despite the black-letter law.
Again, rubbish. I can indeed ignore the Bill of Rights and remain a nation of laws, because it's not law. The Bill of Rights is a set of handy suggestions, but as law it fails miserably- and as I've said, every single Supreme Court justice since, well, practically forever, agrees.
Of course they don't. The constitution is a black and white document, but we don't live in a black and white world. Necessarily, the constitution is overrated and must be ignored. Rational, reasonable people accept this. Many of them even made it to the Supreme Court.
Anyway, what the hell does this have to do with socialism? Are you unable to separate economic theory from political, or are you just trolling?
I don't need to repeal it. Doing so requires far too much effort. The 2nd Amendment isn't worth the paper it's printed on; why would I attempt to have it overturned? All I need to do is curb its interpretation, and that is perfectly sufficient. It also requires only five people.
Not necessarily; doing so requires an effort entirely disproportionate with the consequences of the fraud you committed. The State shouldn't prosecute you because there's no reason to- you didn't get anything out of it and neither will the State.
In this case, however, that's not true. This is where prosecutor's discretion does come into play.
Ironically, then, none of the justices on the Supreme Court since... oh, ever, could parse simple English phrases either.
Either every single Supreme Court justice since ever is illiterate or they're all evil.
The answer is, no, they're neither. They just realize the reality of the situation, which is that the Bill of Rights is simply wrong in that respect and you need to ignore it and get onto more pressing matters.
What if the traffic cop is cute?
I think there are a lot of flaws in our adversarial system. I was hoping the last time I was in Germany to watch a court proceeding there, but unfortunately I fell ill and was unable to go.
The issue I think with Amicus briefs, is that while you say that they help prevent some of the problems with unequal representation, I don't think that's true. People only generally get amicus briefs submitted in their cases when those cases attract attention- and those cases that attract attention are very likely to also attract high-powered lawyers (if only for the publicity).
The average little guy who goes to court doesn't get ten law professors to file Amicus briefs in his case, which sort of minimizes that effect, I imagine.
I suppose it boils down to this: I don't mind the Court going out and conducting an investigation on its own; even if there are biased sources out there, the Court has a huge amount of material to sift through and can come to its own decision on the validity of that material. I don't mind amicus briefs that are filed with the specific intention of informing the Court. I don't really mind if the parties who submit this kind of amicus briefs actually want to get themselves in as parties to the action so they can vigorously defend themselves.
I do mind, I think, when parties tend to back-door their way into litigation. That isn't to say, of course, that this is the only way that happens; I know plenty of other ways. I'm aware of a case where a gentleman has three different judicial orders preventing him from appearing before the court at all without leave thereof, and yet he's gotten around those orders more times than I can count.
Oh, well. I suppose no system is perfect.
I think you brought forward the difference yourself- 'is it appropriate for third parties to present analysis of any kind to the court' is different from 'can people write opinionated analysis?'.
The answer in the latter case is, of course, yes. In the former, I would argue no; that's what the parties to the action are for. They're there to present their cases, and nobody else should be doing so unless they can get themselves added to the action as parties.
As for crowd-sourcing, I think that's a reasonable argument... but I would turn around and point to the group polarization phenomenon. People who are surveyed in a vacuum are likely to be more 'realistic' for lack of a better term than those who are involved in a matter with a group of other people who have differing opinions- the natural reaction is to become more radical in your own opinion to counter it.
I wouldn't mind at all if the judge went to the law review and had his clerks flip fifty coins to decide on half that number of randomly-selected journal articles about the issue. At least then s/he can be said to be going out on their own and conducting investigation (in much the style of the inquisitorial court system, vaguely.)
I'm not sure that's true at all. For example, I often go to the Law Library to look up vague topics related to cases- for example, I was there today looking up the law of evidence as it relates to hearsay and exceptions to the hearsay rule. The work as presented in the text was certainly well written, wasn't useless at all, and despite that was entirely unbiased when related to the case at hand (for obvious reasons).
It's possible to write a legal treatise about specific points of law without making it obvious you're supporting a side- essentially, bringing up directions, trends, case law, other reference works, and so on. And I think that, essentially, was what the amicus was supposed to represent- not to mention other matters (than law) which the Court would not be well-versed upon, like the mechanics of soil-irrigation or whatever the case was about; in those cases, the amicus brief would merely explain the specific matters relating to the topic for the Court.
Yeah, I know... but I think that, as a question of law, is really too broad a topic. I wouldn't mind a nice brief (and as I said in a sibling comment, I haven't read the briefs, so keep that in mind) that merely sets out the qualifications for how one might mis-instruct a jury and how the elements of this case press upon those elements, without drawing a conclusion- because, to be perfectly frank, I feel that is the job of the Court and the Court alone. Counsel for the parties are allowed to propound a specific view of the facts; the Court decides on one- but an Amicus should just bring forward information.
All that said, let's be honest- all amicus briefs are filed in support of one side or another. Nobody goes to the trouble, expense, and time of filing one just to turn around and say "Oh well, we don't care who wins just so long as the Court knew what they were talking about!"
I just really dislike intervenor status... because it's a way for people to jump in on the sides of an argument they really shouldn't be in in the first place. You might say (and people do) that they do have a right to be in the argument because their rights will be unfairly prejudiced if the conclusion goes one way or another... and I think that's the excuse that many 'friends of the court' use.
But in that case, they're not friends of the court- they're plaintiffs or defendants, and they should join the action as one or the other if they feel that way. The problem is, I don't doubt most of them fail to meet the basic qualifications to do so. In that respect, then, I'm not sure they really do have sufficient status to back-door their way in by claiming to be friends of the court.
Now, I suppose I should point out that this is my opinion, and not the way things work, but that should really be obvious.
Or perhaps they will incorporate some of its information.
How should I know? I haven't read it.
The difficulty with these briefs is that everybody's got an angle. Everybody wants something, and to be perfectly honest, it's never 'good will toward mankind and advancement of the human race'- or if it is, that's only incidental to the primary purpose.
At least where the plaintiff and defendant stand is clear. Where 'friends' of the court stand is much less so, and for that reason I think they're being (not just here, but in general) and are abused.
The Court can decide what briefs it accepts or not.
Arguably, I think the briefs are misfiled and that the process of the amicus curiae is being abused; A good amicus brief should, in my opinion, not be filed in support of any particular side, but in defense if a particular argument of law or explanation of fact.
Then you ban all Tor exit nodes; I know quite a few places that ban all Tor exit nodes and ban as many proxies as they can get their hands on.
Anonymity is too annoying to allow, in general.
Tell me, how long does it take you to read through the source of every program you compile? Do you ever actually get around to compiling anything, at this rate? Do you have time for a real job?
[Citation needed]
To be honest, I am somewhat confused at that article.
it states:
Proportionately, then, the 5th Circuit had 80% of its reviewed cases overturned and the 9th Circuit 86%, which is not a terrible variance.
Now, he appears to be arguing that since the Supreme Court chose to review more of the 9th Circuit's cases than the 5th Circuit's, that should be relevant. I'm not sure that's true; one of the major reasons the Supreme Court chooses to review cases is because it feels it needs to resolve a circuit split or because a case is instrumental and requires deciding. Given the reputation of the 9th Circuit, I'm not really surprised that the Supreme Court would deal more often with cases arising from it; look at where it is and what kinds of cases have come up from the area, which includes Silicon Valley and Hollywood.
In any case, given that the total difference between the 9th and the 5th Circuits is approximately eighteen cases, I'm not terribly concerned. It'd be one thing to say that the 9th Circuit gets two hundred of its cases reviewed and the 5th Circuit gets five; that would indeed say something interesting (although I'm not entirely sure what it would say). Eighteen, with a relatively standard proportion overturned (57% between 1950 and 2006 out of a total of 604 cases, compared to 56% out of 418 for the 5th Circuit, see the sibling post's link) is, quite frankly, not concerning. (And, if you read in the article where it writes "In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit..." you will see that in fact, 604 is indeed 1/3rd more than 418, or very nearly, so it appears there isn't a problem in that respect either.)
(Also, because this is Slashdot, I'll argue my originally comment was technically correct depending on how you read it. I'm not even sure that it's incorrect in any way, but I didn't spend much time attempting to parse it in every possible way, so YMMV)
That has certainly been suggested on many occasions.
The problem is, that splitting the circuits like that is undoubtedly going to be a political decision. Because the 9th Circuit tends to generate a large proportion of its appeals from California (I believe it's about 50%) many advocates of the 9th Circuit remaining at its current size argue the calls to split it are politically motivated solely to reduce the 'damage' that can be done by the California-influenced [read liberal] circuit.
Arguably, the circuit is far too large and should be split. However, there is also a compelling judicial policy objective in minimizing the number of circuits as it minimizes the potential for 'circuit split'.
If you want my opinion (although most people don't, admittedly), I'd suggest splitting the circuits so that each circuit comprises, say, 5% of the US population and then there is a second level of appeals circuit which each hears appeals from four or five of the level one circuits (which leaves four or five lower level circuits to appeal to the Supreme Court).
However, before making an informed decision, I'd have to really go and look at the number of appeals. Remember, too, that ever since the Judiciary Act of 1925, the Supreme Court's number of cases has severely dropped off which makes the Circuits even more vitally important.
The Supreme Court has about 7000 appeals per year and hears about 100, I believe.
No. It doesn't. The 9th Circuit cases are indeed the most likely to be overturned, (not the same thing), but that is because there are more of them than any other circuit (the 9th Circuit covers about 20% of the US population).
Proportionately speaking, the 9th Circuit is about average for the chances of any individual case being overturned.
I appreciate the flexibility to bill where an when I want to.
Maybe that's just me, though...