Comment by btilly | Hacker News Reader

Comment by btilly | Hacker News Reader

I would recommend two fixes.

1. Random assignment of judges to cases.

2. Any judge accused of failing to recuse from cases with a conflict of interest has to face a randomly chosen panel of judges. If the panel agrees that the judge has deliberately taken on cases with a conflict of interest, the judge can be removed from the judiciary.

The first would make shopping for a judge harder. For the second, the way he advertised and then his behavior when he got the cases is hopefully enough to convince a panel of neutral judges that he is biased.

The first would be a relatively easy change to make. The second is complicated by the Constitution, which reserves impeachment of judges to Congress. Something which has only happened 15 times.

However https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti... argues, convincingly to me, that it is within the power of Congress to write a law enabling other judges to remove a judge. (Though not to criminally charge him for his behavior - that still requires Congress.)

If you can't trust judges you're in a lot of trouble. Why trust the randomizer? Or what happens if I accuse the randomizer of being untrustworthy? What happens in smaller districts where there may be a small number of choices?

You may want to check out how elections were done in Venice in centuries past. They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect: https://www.venetoinside.com/hidden-treasures/post/the-elect...

The legal system is for the exceptions, the places that automated systems break down, the places that need human judgment.

That's the importance of a free press. We can't work without trust, we need it, even though it introduces certain risks.

> Why trust the randomizer?

It's easy to do worse than random. Trying to do better than random often ends with doing worse than random, while aiming for randomness usually ends with randomness.

> They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect:

I see information about the process but none about how and why it failed.

Yeah, wasn't Venice a republic for close to 1,000 years? What ultimately did in Venice was Napoleon conquering all of continental Europe.

Eh they were essentially a monarchy by that point and power fell to the hands of a few families by the time of Marco Polo

What's different from then and today?

Is this an honest question?

Was being rhetorical.

My interpretation of the comment about trusting the randomizer was how do we trust that selection was actually made randomly?

There are different types of random distributions. You can check the stats for the output and see if they fall in the expected distribution or not. To deal with someone tampering with the results and removing evidence of their tampering you'd need similar protections to what I'd expect on a device used for voting.

You made me think about this we want system that assigns a judge, but can't be manipulated. I actually think it's possible with our current cryptographic tool box. This just a quick thought off the top of my head, I might have missed a case or a weakness.

Cases normally are assigned a case number anyways already. So lets start from case number 0.

First lets choose a nothing up my sleeve number. Let say like the fractional part of the PI with the bit length of some secure hash function. We can treat this case -1 or the initial state.

The plaintiff and defendant each generate a private and public key pair. They then give each other their public keys. The plaintiff and defendant each sign the what will become the previous state with their private key. XOR the the two signatures together and then hash the XOR-ed signatures. This gives the new state. We then take this new state and take it to the modulus for the number judges. Just repeat this for each case new case.

Neither the plaintiff nor the defendant should be able to directly influence who their judge is in this system. Also both can verify that other party performed a proper signature. Although there could be gotchas depending on the underline primitives from hash function to signing algorithm.

Once you've agreed on who the eligible judges are, you can just have the plaintiff's lawyer and the defendant's lawyer meet up in a room and roll dice. This isn't a technical problem requiring advanced cryptography, it's a social or political problem.

Also, your method is biased towards lower-number judges when the number of judges is not a factor of the range of the output of your hash function. Use an existing library instead.

I mentioned as well it just was quick thought off the top my head. However, then you have the question can you trust the dice. It's a lot easier to trust math.

I could sit down try to figure out a construction that adjusts/accounts for any given N judges. Again though like I said this was just quick thought off the top of my head showing it seems possible to make a construction that can choose judges. Not something with every possible detail refined.

However, modular bias becomes smaller the larger your max number gets. We are not talking a small 32 bit random generator here. While it would be ideal to eliminate the bias it's not exactly easy. One could try the method of re-rolling/generating till you get an output in the target range. This has a massive problem because it is improbably at the scale of these numbers. Secondly, one can't control the modulo N in this case. There are things we can try to smear the bias, but that does not eliminate it.

Moreover, as mentioned before the scale of max output works in our favour here. The larger your max output/range is the smaller the bias is. Anyways there is a reason the CPRNGs will just truncate their output when you tell one to return X bytes. The range of possible bias is so small because how large cryptographic numbers are. Although some algorithms max output is a power 2 so the modulo N works out nicely.

The worst a bias like this can do is make partitioning cryptanalysis stronger, but unless you made some really bad choices generally should only be a theoretic break. At which point your designing primitives and not a protocol. However, that part we are using the modulus on is not secret so we are not gaining/losing anything there. For this instance it's just extremely tiny bias towards a certain judge.

I think it's very solvable: Given N numbered judges, you have both sides, perhaps plus an allegedly neutral third party, submit a number from 1 to N in a sealed envelope. Then, in full view of the public, someone opens the envelopes, and you add up the numbers and take the result mod N.

If even one of the parties submits a fairly chosen random number, and manages to conceal it from the others until they've submitted their numbers, then the result will be a fairly chosen random number. Then no one involved will have standing to complain that the result wasn't chosen fairly enough.

Isn't it effectively impossible to prove that a selection was truly random? Because if it correlated to something (so that we could verify that relationship), it's no longer random. Like if I made a random number generator, and it only ever outputs the number 4, I don't think there's any way to validate whether the RNG is broken or if this is just the exceptionally unlikely chance that the number 4 is chosen repeatedly.

Reminds me of this Dilbert comic[0]. You're correct that you can never prove that a sequence is not random. But looking at the probabilities could be enough to prove tampering beyond reasonable doubt. At the very least this would be enough to launch an investigation even if we were unwilling to draw conclusions based on probability alone.

[0] https://dilbert.com/strip/2001-10-25

> If you can't trust judges you're in a lot of trouble.

Exactly.

We can't trust judges. And we're in a lot of trouble.

Wouldn't a randomizer help with changing incentives?

The default assumption should be that people are corrupt given the right incentive which in this case shows. It's not perfect but it's better that someone is not certain that they are able to attract certain cases for future.

“ If you can't trust judges you're in a lot of trouble.”

Alexander Hamilton wrote in the federalist papers that we need juries to protect us from corrupt judges.

Unfortunately that does not protect us from the 9th circus. For cases that I follow, just going by whether they were appointed by an R or a D president is 97% accurate at predicting how a judge will vote. If I can predict their vote without reading the briefs or listening to the arguments, I suspect they can (and do) as well.

Or, more likely, you need to follow more cases.

I mainly follow civil rights cases.

> You may want to check out how elections were done in Venice in centuries past. They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect: https://www.venetoinside.com/hidden-treasures/post/the-elect...

What specific problem were the Venetians trying to solve with that design, and how did it turn out to be ineffective?

They were trying to avoid oligarchy, where few powerful families would monopolize the power. It worked remarkaby well, actually: Venetian Republic lasted 1000 years, served as a bulwark against western expansion of the Ottoman empire by running an effective combination of trade engagement and military projection, and was arguably a shining light of western civilization for most of that time. They were done in by the rise of nation-states and loss of income from their Eastern trade, not by failure of their system.

> If you can't trust judges you're in a lot of trouble.

They're just humans. They are not to be trusted by default until they prove otherwise.

In the real world, people can't be "proven trustworthy". They're given their positions of authority in the absence of proof of untrustworthiness, and they hold those positions until said proof comes along (i.e. disbarment, judicial impeachment) or until they retire.

> Why trust the randomizer?

Moreover, what if the randomizer picks one out of 297 judges, 235 of whom are known to be biased? Then it doesn't help much.

Randomization changes the incentive structure. If you can't advertise that you'll adjudicate cases unfairly, the risk-reward ratio changes completely. Why advertise you're corrupt if there's only a 1 in 297 chance the belligerents will land in your jurisdiction?

That still seems wrong-headed; you have disincentivized a dishonesty, not dishonesty as such, nor turned the crooked judges honest.

Just saying "we should trust judges" doesn't mean that a system of randomized selection for which judge isn't intrinsically valuable or meaningfully increase both confidence in and reliability of the system.

We should trust judges.

We should also create a system that strives to reduce the chance that individual judges could get to a point where they're less than trustworthy. Judges are people too, and respond to incentives. And yeah some individual judges suck, and are bad at their jobs. Like some doctors, and some lawyers, and some engineers.

A system that reduces their impact and influence, like randomization does, minimizes the harm of a bad apple, and also reduces their blast radius. They can't advertise that they'll adjudicate your case.

After all, isn't this why we have appeals courts? If you could trust your individual judge implicitly, why allow an appeal?

Trust, sure, but verify.

> Or what happens if I accuse the randomizer of being untrustworthy?

Open source the RNG. Let people see for themselves. Publish the stats that show it's a uniform random distribution.

Apparently the Venetian system looks rather good in retrospect, though it did include more rounds and ceremony than was mathematically necessary. https://www.hpl.hp.com/techreports/2007/HPL-2007-28R1.pdf

> the judge can be removed from the judiciary

And disbarred. He shouldn't be able to say "oh well, I tried. I guess I'll go back to lawyering."

That is up to the bar association, which is a state level issue. Congress can't pass laws on that.

And bar associations are famously slow to discipline lawyers that misbehave. In some states you basically need to be convicted of a felony before the bar will step in and do something.

Article agrees with #1.

"As they note, it seems like an easy thing to fix if Congress had the will:

Two reforms would help solve this problem: first, district judges should—by law—be randomly assigned to cases and, second, venue in patent cases should be tied to geographic divisions within a judicial district, not just the district as a whole."

> As they note, it seems like an easy thing to fix if Congress had the will

Ah, there's the problem. If it's not appointing Judges, good luck getting Congress to do it.

These judge's don't have a real conflict of interest--as is traditionally understood. They don't make money from these suits--directly or indirectly.

If they are elected I’m sure they’ll get plenty of donations next time they run tho.

Appointed. Irrelevant.

> They don't make money from these suits--directly or indirectly.

That's a suspiciously strong claim given the enormous number of options for laundering money/value indirectly. What makes you so sure his contribution to patent trolls' cause is completely unreciprocated?

What contribution?

The contribution that has patent trolls flocking to East Texas.

They are not supposed to, but this is the real world. Not the ideal one. I know at least one corruption scandal where judges (2) were getting paid to deliver verdicts in certain way.[0]

That was so egregious that it broke the news.

0: https://en.wikipedia.org/wiki/Kids_for_cash_scandal

An alternative and IMO better fix would be to have patent cases decided by juries.

1. Random assignment of judges to cases.

I can definitely see the benefits, but don't we also want judges to have domain knowledge?

We don’t care if juries have domain expertise, why should we care if judges have it? The trade off of high efficiency risks corruption IMO favors lower efficiency.

It's the job of the belligerents to make their case in a way any juror or judge would be able to understand. They and their expert witnesses are to bring their domain knowledge, and to present it in a way a jury of peers would be able to interpret.

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