Comment by ryandrake | Hacker News Reader

Comment by ryandrake | Hacker News Reader

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> The law was written in a certain technical way, and what's relevant here is whether it counts as 1 or 5 stores according to the law. It's the same way you could claim Amazon is 1 store, or 58 stores (1 for each country) or 2.5 million stores (for each third-party seller).

IMO this culture of "Rules Lawyering" and being technically correct is one of the reasons why everything is so shitty and why companies always seem to get away with bad behavior in the US. This is the corporate version of a six year old waving his hands 2 millimeters in front of his sister's face saying "I'm not touching you! I'm not touching you!"

Yes, the marketing material is totally irrelevant and should be considered fiction, but I would hope that a judge would look at the actual end-user experience is in totality, rather than accepting some silliness like "look, it's 5 different IP addresses, so ackshually it's 5 different stores!" or whatever the technicality-driven argument will be.

There's nothing _but_ 'rules lawyering'.

All good intentions that hope to have an impact on the real world have to be reified as policy, which has to be implemented as law, which usually delegates specifics to rules-making. We can be disappointed that ultimate product of that process often falls well short of the original intention, but laws and rules are wildly preferable implementation of policy than judgement alone.

That's just not true. A lot of judicial systems give leeway for judges to rule using the spirit of the law and not just the letter of the law. Especially for obviously fake arguments, or when laws need updating to newer norms or unforeseen technologies.

Judicial interpretation is essential. Half the artifice of western civilization is built on the word 'reasonable' and its interpretations in caselaw. However judgement cannot be the primary definition of a policy. 'I know it when I see it' couldn't even be the definition of obscenity - the court repaired it 10 years later with a more clearly delineated test in Miller.

The definition of 'platform' or 'monopoly' or w/e in the context of TFA is necessarily going to be technical and detailed, and encourage the entities it regulates to drive right up to the lines it draws. The job of the policymaker is to draw lines that accomplish her intentions.

The problem with "I know it when I see it" definitions is that there's an inherent lack of consistency, in that two different judges aren't guaranteed to reach the same conclusion.

For instance: fair use of copyrighted content. The only way to know for sure whether something is fair use is to go through a lawsuit. You can be pretty confident in advance, but you genuinely can't rule out the possibility that the judge will disagree with you because of something entirely subjective.

Writing an objective technical definition can lead to rules lawyering, but the fix there is to improve the rules and close the loopholes. Otherwise you're always at the mercy of being sued and happening to draw a judge in your case who makes a weird decision.

The system already acknowledges that two judges are not guaranteed to reach the same conclusion. First of all, because there's a system of appeals. However, an even stronger example is that you need a majority of judges in certain cases - e.g. in the US Supreme Court and other courts.

Yeah, and that's needed even in cases where there's supposed to be an objective standard! In cases where it's explicitly subjective going in, "we might flip on appeal" can be pretty terrifying.

Laws are imo somewhere between code and natural language, and imo closer to the code end of the spectrum.

If you go full “natural language” approach that’s open to whatever interpretation, that’s how you get kingdoms and dictatorships. Everything seems cool and all with the “natural language” approach to a legal system, up until the point the person in power decides to arbitrarily use it against the interests of the people they are governing.

This is pretty much why laws in countries with at least somewhat functional legal systems tend to be treated more like pieces of code rather than whatever someone thinks things should vaguely and generally.

The culture of “rules lawyering” is imo the best we can do if we want the legal system to treat everyone equally and impartially. Do you think that all the people involved in legal systems over thousands of years were just not enlightened enough to ever consider “why do we have all those ultra specific and codified laws, let’s just issue a list of general things like ‘don’t harm other people’ and ‘respect property of other people’ that would cover pretty much any undesirable behavior, and then call it a day?”.

If anything, legal systems became more “rules lawyered” and more similar to code over time, precisely because the world has been moving in the direction of more fairness and equality. I mean, not that long ago at all, we had some of the most advanced nation-states being ruled by a single king/queen/emperor/etc. And their word was not only a de-facto “absolute definition of the law”, but also de-jure (as opposed to some contemporary modern nation-states, like DRPK or Russia, that where laws technically exist on paper, but de-facto their codified definition doesn’t matter much at all,).

Some dictatorships are doing stricter rules lawyering than any democracy, the "issue" being that there's an unambiguous rule somewhere that the King is sovereign without limits on their power.

I think you have this backwards.

No, I don’t think I do.

Mostly because while dictatorships might have “strict laws”, they are typically left as vague and generally-applicable as possible, precisely so that they can be used in whichever way the dictator wants.

Also, those “laws” don’t matter anyway in a dictatorship, and “rules lawyering” we are talking about here wouldn’t apply there. More specifically, “rules lawyering” isn’t a thing in a dictatorship, just like they are not a thing in a kingdom[0]. Do you think someone would be able to lawyer up and win a case by finding a loophole in the laws, against someone in a dictatorship? I strongly doubt it.

Dictatorships are imo just kingdoms, but with the ruler not “chosen by divine powers” or having to be a descendant of the previous dictator in power, and with the whole pretense theater of a legal system that only “matters” until someone in power doesn’t get involved (and then it becomes purely about who has the higher rank within that structure of dicratorship). It is basically the same, but at least old school kingdoms (unlike dictatorships) weren’t acting pretense about it and often plainly and openly just went “yeah, i am a king, who is a descendant of that one king who was chosen by some divine powers, legally i can do whatever i want, and i will be in the right.”

0. Talking about an old type of a kingdom, not talking about something like modern day Kingdom of Sweden (which is still the current official name of the country).

  this culture of "Rules Lawyering"

I’m with you on hating Apple but I actually like when judges stick to Rules Lawyering. It can be tempting to ask them to “consider the whole situation” and bend the rules towards justice, but that’s how we get unelected people doing stuff like a court unilaterally removing abortion protections in the US.

Ok, your example is kind of strange though because the courts unilaterally added them first.

Yeah but for a legal reason. Not “eh it felt unjust”. But more materially: yes I bite that bullet that was a bad procedural move that saved millions of women. If the Supreme Court really was taking a stand about turning back the mistakes we made with jurisprudence in the 19th century, I would’ve supported the overturning of roe v wade. Instead (and I hope this is a non controversial, HN-friendly statement) they were very clearly and somewhat openly driven by ideology.

The fact that the courts changed their mind multiple times is a further argument against trusting them.

It is okay to change you mind when given new evidence or the circumstances change.

There wasn't any new evidence, though, and the circumstances hadn't changed, other than the composition of the Supreme Court.

Their argument was not that circumstances had changed, but that the the case was decided wrong to begin with, comparing Roe v. Wade to the case Plessy v. Ferguson, famous for deciding that laws enforcing racial segregation did not violate the U.S. Constitution so long as each race was given equal quality facilities ("separate but equal").

Eh, we got prohibition wrong too. Good learning opportunity.

Apparently not, given that we have had to re-run the “Should we prohibit this thing that was previously considered a personal decision” experiment yet again.

I don't want to take sides here.

That is not an obvious statement. To one side, that is obvious.

To the other, that sounds the same as "murder should be considered a personal decision."

You have already taken a side by comparing Row vs Wade to prohibition. If you don’t want to take a side… don’t present arguments for that side.

I didn't compare Row v Wade to prohibition.

I brought up Roe v Wade as an example of the courts changing their mind, completely unrelated to Row v Wade.

You must have made that association.

I must have misread the “too” in

> Eh, we got prohibition wrong too. Good learning opportunity

as if you were saying we got both of those things wrong.

I mean yeah, as an individual. I’d hope for a little bit more stability and reliability in a legal system.

That's why Supreme Court justices can't be removed - to resist the quick changing whims of the public.

We're almost 250 years old. Hopefully some things have changed in our society and culture to cause a change in the legal system.

The ruling was 50 years old, not 250. Sure, the general process can change. But, it should be hard to remove freedoms that already exist, and the fact that they were able to change a 50 year old ruling on a whim is bad.

Considering the spirit of the law while judging is a different thing from the expansive de-facto law-making that RvW epitomizes.

You cannot expect lawmakers to predict every technological quirk that companies will employ to escape antitrust oversight, so invoking the spirit of the law in those circumstances is just fine. RvW massively expanded the definition of some constitutional rights in ways that have always been contentious. It's a completely different thing.

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