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by jobu 3551 days ago
They will tell you, “you know the cost of litigation is this number”. Which I unfortunately know the cost of litigation is like that. “All we are asking for is a percentage of that cost and then the risk of punitive damages will go away”

It still amazes me that extortion via lawsuit is legal.

7 comments

I know lawyers who do this on a regular basis and they, amazingly, think of themselves as good people. They even go to church, amazingly enough.

I guess my point is never underestimate "incentive-caused bias"

What does a group spewing incorrect non-sense about reality have to do with morality?

Many times these groups takes immortal stances because of their detachment from reality. For example there is a huge correlation in people who don't care about the suffering global warming causes and religion. Its not really hard to understand either, many modern day american think Jesus will come in their lifetime, so why bother caring about 100 years from now.

It even works for things directly against rules in the book. Churchgoers are more likely to be for the death penalty even "thou shall not kill" is most of those religious books.

I am not saying all religious people are bad, just that religion does not filter out bad people or bad behavior effectively.

It's tough to say things like this in public, because so many people feel so strongly about their religious beliefs (I'm sure if I had any I'd feel strongly about them too).

But, the idea that morality is tied to or because of religion is, erm, pure applesauce. To me, morality appears to be the moving zeitgeist of opinions on what makes a proper society.

At the risk of derailing this topic, the concept we have of privacy as a moral issue is likely to change as well. The common current idea (which I hold as well, please don't misunderstand) is that one's personal privacy, especially as related to communication, is sacrosanct.

But, in a world where it's getting easier and easier to just not give a shit about that and (generally, for 99.9% of the population's personal lives) have no ill effects, people are going to care less and less about data privacy and security, and the zeitgeist will shift.

I think that it will be the defining issue of the 21st century, and I have no idea how things will look coming out the other end.

If that zeitgeisty soft morality issue changes I pray to god that our acceptance of flaws and realistic human behaviour from our political class changes too.

Because in a world with no privacy, the only people who are going to be squeaky clean are thoae whose lives have been curated from day 1, either through privilege and iron-fisted parent s or through single-mindedness verging on psychosis.

People who should in no way be taking power.

> If that zeitgeisty soft morality issue changes I pray to god that our acceptance of flaws and realistic human behaviour from our political class changes too.

Most countries aside from the USA are pretty blase about their politicians' personal behavior and morality. It's this silly idea that politicians should be paragons of personal virtue, independent of their public and political virtues, that gets the US in such hypocritical binds.

People, no. AIs, yes. Ppeople shouldn't be in power in the first place.
That just moves the responsibility from "people" to "people who program the AI".
Who makes the AI?
1) Invent god.

2) ???

3) ???

[...]

3.468^10128) ???

> one's personal privacy, especially as related to communication, is sacrosanct

Privacy is a fairly modern invention. I'm not saying you're wrong, but I think it assumes too much to take the concept of sacrosanct privacy as axiomatic.

My whole point is that it is not axiomatic, or fundamental, in any way. Instead, it's a consequence of the zeitgeist :) and because of that, I see it disappearing over the course of the coming century.
> Churchgoers are more likely to be for the death penalty even "thou shall not kill" is most of those religious books.

...and the ones who are against death penalty for criminals often support abortion. So much for the idea that life is "hallowed".

(FTR: I am personally against both.)

People oppose death penalty for a variety of reasons, not just out of conviction that "life is hallowed".
Given that you made a link between killing and abortion, it was pretty obvious that you were against abortion. Pro abortion people do not believe abortion is killing anyone.
If you read up on the way it is practiced there is a fat chance you will see the link as well. (Hint, they aren't always dead when they come out. Recently (2 years ago IIRC) even nurses who work with this day in and day out started objecting to the practice because as they said; it is completely crazy that on one room they are fighting to save the life of a premature child and on the next they are throwing a towel over an equally old babys face so their mom won't hear it crying before they finally bleed out/and or suffocate.)

Also : we are way off topic and I don't want to continue this thread.

These episodes could only happen in late-stage abortions which are very rare. You can call it murder but that doesn't inform the debate about abortion in general.
There isn't just a abstract link, there is an explicit definition if you consider a fetus to be human, which is what the debate is about.
Someone could connect the two and simply be pro-murder.
There are people in favor of mankind going extinct
There's no conflict in your counter-example.
On the other hand, people who go to the church are more likely to give to charity, or participate in their community… It seems religion is doing some things right.

(Source: Skepticon.)

Are they giving to charities ran by their church (or an affiliation)? Are they giving to their church and it's called charity?
> Are they giving to charities ran by their church (or an affiliation)?

No idea, and I'm not sure it even matters. Such charities tend to help anyone afflicted by the plight they chose to alleviate.

> Are they giving to their church and it's called charity?

Since it was coming from a LessWrong contributor in Skepticon, I'd say this is improbable. Most likely, he scanned the study for such errors.

Charitable activity provides a lot of political cover for really shitty religiously motivated behavior. For example, giving money to the Salvation Army is probably a net-negative effect on the world.
"Going to church" can be said to be a form of "Participating in their community", so this looks like it might be a tautology presented to paint church-goers in a positive light.

"Giving to charity" is not necessarily a good thing. Before giving to a charity, a person ought to skeptically evaluate the charity. Many charities exist to exploit our desire to feel good about ourselves while benefiting those who run the charity. People who don't apply skeptical thinking are easy targets.

If our goal is to use our money to make the world a better place, in some cases it may in fact be better to invest in a local small business than to give to charity.

The curious thing is that patent trolls exist at all because lawyers are so expensive. The reason almost no company can afford to fight patent trolls is because the legal costs are so expensive.

On a related note, I also find it incredible how people can make a living out of these kind of businesses and sleep well at night...

Seems like a business opportunity to me. If you can get people who are being sued by these people to buy patent troll insurance and pool the resources you could out resource the Patient Troll and make a profit.
If I remember, that's one of the things Cheng has done. He tries to find companies currently facing threats from the same troll and share costs to drive the price of a suit under the (summed) price of settlement.

There's no real way for the defenders to make a profit, since getting damages out of the troll is basically impossible. And unfortunately, that means that even with pooled resources, trolls are purely a drag on the economy. But at least this way, they tend to lose and stop being a drag for the next guy.

there is actually no way to get money from them. Most of them know what they are doing. They will setup an empty corporation thats only assets is the patent and then hire themselves as legal counsel for the corporation who gets paid 100% of the proceeds from any lawsuit so the company never has any money. If they lose a lawsuit their patent will be invalidated and have 0 assets so there is nothing to take from them if you try to collect damages in a counter suit, they will just declare bankruptcy and fold the corporation and make a new one
If the only reason the company exists is to file frivolous or bad faith lawsuits a judge can hold the corporate officers personally liable. Increasingly there are anti patent troll laws being passed that allow a patent holder to receive statutory damages.
Losing more frequently than willing could shift the economics away from trolling. Even better would be court sanctions and/or having to pay defendants fees.
Absolutely, and we might be starting to see that - I'm just mad that it's still purely negative for the defenders.

Of course, it's hard because paying the opponent's fees opens up other kinds of abuse. If you get sued by Coca Cola, you can't just judge what lawyer you can afford, you have to realize that even a small decision against you could come with the million dollars in costs they paid to take the thing to court. I don't really know a good answer to "litigation is expensive, and that produces abuse".

Sanctions or frequent invalidation of patents would be great, though. One other thing I would love to see is a change to the choice-of-venue rules - this would be less of a problem if we weren't seeing every case fought in East Texas where summary judgement is impossible to get.

Patreon for Corporations with a bounty for every case won?
There's got to be something like that possible. If nothing else Newegg has been reaping some rewards from very publicly fighting these cases and gaining good will.

If the government can't put together competent reforms, maybe they could put up some money to reward people who get bad patents struck down? Hell, maybe some percentage of infringement winnings could be directed into a reward pool for patent strikedowns.

It'd decrease the overall value of patents, but I'm pretty ok with that.

Profit from the defenders! Though that feels dirty
RPX does something like this: https://www.rpxcorp.com/
RPX settles with trolls when it is the most cost effective thing to do.
>> On a related note, I also find it incredible how people can make a living out of these kind of businesses and sleep well at night...

What we do is legal, therefore it is not unethical; if it were unethical, it would be illegal.

I think people missed the hidden /s in this post.
If /s means sarcasm and you are correct, then GP is intending the opposite of what they say. That unsignalled irony will be missed by 95% of readers, and is probably ill-advised. I certainly didn't pick up on it, and I'm usually decent at that.
Was a bit difficult to pick up on it.
I found it obvious by context.

I'm guessing this is a good example of Poe's law.

I think your logic is failing there, the fact that something is legal doesn't make it ethical straightaway.

You can do unethical things using legal loopholes without it being necessarily illegal.

That's... exactly his point ...
Legality != Morality. Some of the NSA surveillance is legal; that does not make it ethical.
I think that's his point. A better example would be slavery. Since it was legal at some point, was it then ethical?
Depends on your sense of morals, I am sure there are many NSA employees who sleep well at night.

Many people follow what I call Godfather's I ethics. Vito Corleone cares about his family and friends and will do rather mean things to those who threaten the well being of those around him.

Tribalism has stayed with us over the millennia and is unlikely to go away any time soon.

The word "legal" is sort of meaningless for behavior that is never observed by legal authorities.

Also, see irony.

>They even go to church, amazingly enough.

Why would that be amazing? Another set of rules to be co-opted and exploited against their fellows must be like catnip for this type of personality. Its the first place I'd go looking for them.

Remember that the Jesus that they claim today was so unpopular for showing up at their churches and throwing down with exactly that type of personality in his day that they had him killed.

And it is the same Jesus that the rest of Christianity claim.

Of course it is bad, even ugly, when someone who has pledged to be follow Christ is an @$$, but do not however try to pretend like Christianity is what causes it.

For any so-called Christian scumbag there is an even worse non-believer, just read up on the reign of terror or the various communist regimes. (And don't get me started on mainstream Christinity and its refusal to, - and I quote "Teaching them to observe all things whatever I have commanded you[...]")

I think we probably agree. Christianity is not the cause. But churches (and the legalism and hypocrisy within) sure can be by providing "moral cover" for bad behavior.

If the Christians followed Christ everything would be great. The first thing Christ did was head for the church, point out the legalism and say "you're doing it all wrong."

I possibly agree more with a number of you than with a number of churchgoers yes, even if I am very much something like that myself (meaning I am a whole lot less tied to specific buildings and more to those I know that do practice it the way I do).

That Jesus was quite radical in a number of ways though, all the way from being way stricter than the religious elite at the time ("It has been said... But I say to you...", going above and beyond what was commonly thought to be good behavior and into what people even today think is close to impossible), to pointing out how their hypocrisy was wrong - to then go ahead and die for them(!), so almost by definition the life of anyone who honestly tries to follow his teachings are still today quite unlike anything that passes for normal.

That said I mostly don't bother anyone else with it, hoping instead that if my life stands out in a good way, those who are interested might ask.

I do however defend my faith, I won't let people thrash the thing that has turned my and so many others life around for the better. That is the least I can do.

...amazingly, think of themselves as good people. They even go to church, amazingly enough.

Why would going to church be evidence that they are good people?

Look at how people act, not what they say. When you look at crime rates, divorce statistics, and so on, atheists seem to behave more morally than evangelical Christians.

I guess my point is never underestimate "incentive-caused bias"

Take that a step farther. When you already believe yourself to be a worthless sinner who has a blank check of forgiveness from Jesus, what incentive do you have to not act like a worthless sinner?

> Why would going to church be evidence that they are good people?

I've heard from a Skepticon talk that some studies show that it is. They give more to charity, participate more in their communities, things like that.

At the very least, going to Church is most probably evidence that one is either striving to be a good person or already think of themselves as good persons. That last hypothesis would explain how they can sleep at night.

> Take that a step farther. When you already believe yourself to be a worthless sinner who has a blank check of forgiveness from Jesus, what incentive do you have to not act like a worthless sinner?

Aren't you supposed to make amends first? At the very least, show some contrition, and promise you won't do it again?

According to Sola Fide[0], faith is the only thing that matters for going to the "good place" or the "bad place". So no, you are not supposed to make amends and promise not to do it again to go to the "good place".

Now to not strawman the argument, it is more complex than that. The wiki link does an OK job explaining some of it.

[0] https://en.wikipedia.org/wiki/Sola_fide

Well, most of the ~900 million protestants in the world agree with some version of it. Obviously it is a slightly more complex topic.
The Bible is very clear about forgiveness by faith alone but also that whoever pledges faith to Christ is supposed to stop sinning.

This is mentioned again and again and again by Jesus and the apostles and it is a mystery how anyone can get away with saying anything else.

"When you look at crime rates, divorce statistics, and so on, atheists seem to behave more morally than evangelical Christians."

Do you have data source for this?

ISTR looking into the divorce statistics once, and mostly finding articles that (through malice or stupidity) compared divorce rates per capita, instead of per marriage. Evangelicals had a higher divorce rate than atheists, but married evangelicals had a lower rate.

Don't put too much weight on this.

First thing I found in Google is http://www.nationalreview.com/corner/382901/little-religion-....

If you identify evangelical Christians by self-identification, my statement is clearly true. Digging into the difference between self-identification and religious practice is not something that I saw before, and is a fascinating data point.

Like I warned about in my sibling comment, the map is comparing divorce rates per capita, not per marriage. It does not say what you claim. (Also, eyeballing it I couldn't even tell you whether the south has an unusually high divorce rate per capita. It's an awful presentation of the wrong data.)

The bar chart is comparing divorce rates per marriage, and does not find that religious affiliation affects divorce rate; but churchgoing does, at least in some religious groups.

> They even go to church, amazingly enough.

I don't see why this would be amazing. Many terrible people go to church. Some even use it as a form of moral self licensing to rationalize doing evil.

If you actually believe in the moral correctness of the law being used, I don't think that's actually wrong, is it? "You are breaking this law. You and I will both spend a bunch of money getting the courts to stop you from doing it. Instead, you can choose to stop doing it and settle with my firm for the cost of tracking you down, which is strictly preferable for everyone involved."

(I hold this opinion weakly, so please argue me out of it if it's dumb.)

Most of the time laws are designed to prevent vigilantism, because vigilantes are not accountable to society and the punishments they give may be disproportionate or self-serving. Enforcing laws through private suits sounds a lot like officially sanctioned vigilantism, and points to a failure of the legal system.
> Most of the time laws are designed to prevent vigilantism

That's quite a claim! I also don't see how that doesn't apply to virtually every law surrounding civil cases. If I pay for a service and you don't give it to me, I have to sue you. Why is that any less like officially sanctioned vigilantism than if I sue you over patent claims? Do you also advocate breach of contract being made legal?

church is a crazy place, so not surprising crazy people go there.
The church is a hospital for sinners.
incentive-caused bias

There is a literature on this:

https://en.wikipedia.org/wiki/Self-serving_bias

I think that tactic makes a lot of sense when it's being applied to good laws. Like, "hey, you know you violated our XYZ contract here, and you know that if we go to court you're going to have to pay me $X, so why don't you just pay me slightly-less-than-$X now and we both save ourselves the trouble." That helps everyone involved. In a sense, all contracts and obligations work that way.
This.

Out-of-court settlement is awesome.

The real problem is that laws are complicated and variably enforced, making it extremely unclear who is right. Thus high legal fees.

The legal system is worse than the shittiest legacy code base you have ever seen, composed almost entirely of buggy exceptions, written with no thought toward future maintainers, beyond the comprehension of any mortal man, and gluing centuries old defunctness to poorly conceived addendum patching over the peeling layers. No one has interested in remove features, just adding more to the mountain of rubble.

> The legal system is worse than the shittiest legacy code base you have ever seen

You haven't seen the legacy code I have. One of the apps I worked on was modelling financial legal agreements. That was some truly shitty code. One function was over 50 printed pages with indentation levels I can't even begin to describe. It was also C++ written like Java. Tons of new's - no deletes or use of smart pointers. Leaked memory like you would not believe. Thankfully it was a batch-process. Even then, the server it ran on was allocated more that 128 GB of RAM because the hardware was cheaper than fixing the software.

Process termination has always been the cheapest way to do GC :-)
It is one of the rare case where I would try to use the Boehm GC.
Dear god... these things exist?! And are used regularly!?
Me too.

https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fee...

> "Nearly every Western democracy other than the United States follows the English rule."

Does anyone know why the US decided on this system? It seems obviously unfair.

A history is here: http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?a....

As for fairness: loser pays disincentivizes bringing lawsuits, whether meritless or meritorious. Under loser pays, certain frivolous lawsuits would not be brought, but meritorious cases that are often uphill battles would not be brought either. If you're in the business of going after polluters (like the Sierra Club), or challenging national security policies (like the EFF), the law is not on your side, even if your cause is just.

As a practical matter, you can't just take the English rule and import it into the U.S. Europe is an "ask for permission first" place, while the U.S. is "ask for forgiveness later." That allows U.S. companies to move faster, but puts the legal system in the position of being a backstop for unsafe products, financial fraud, pollution, unfairness in hiring, etc. So for example, it would be unfair to make it untenable for individuals to bring lawsuits for wrongful termination without giving them the protections against arbitrary dismissal European workers enjoy.[1]

Much of the support for loser-pays in the U.S. is an attempt by businesses to have their cake and eat it too. They don't want plaintiffs lawyers' bringing privacy lawsuits, but they're not exactly clamoring for that system to be replaced with European-style data protection laws administered by regulatory agencies.

[1] Which model is more efficient is debatable. I think in areas where causation is difficult to prove (environmental, product safety, employment discrimination), "ask for permission first" does a better job protecting the public at lower cost. But it also gives tremendous additional power to the government to micromanage the economy.

Thank you for this analysis.

A lot of complaints about the legal system seem centered around particular cases where things seem unfair, but it's important to bear in mind that the legal system as a whole tries to optimize multiple, sometimes-contradictory objectives, and every design choice represents a tradeoff.

* The tradeoff between discouraging frivolous lawsuits vs. discouraging legitimate lawsuits is one case

* Another common complaint is that laws and regulations are complex and inscrutable -- but the tradeoff is that a simpler, shorter law will be more ambiguous and therefore actually less predictable in practice until it's been thoroughly litigated

Sometimes it surprises me that professional software engineers deal with systems design tradeoffs every day in their own work, but then fail to see that systems design logic also applies to human institutions.

> Sometimes it surprises me that professional software engineers deal with systems design tradeoffs every day in their own work, but then fail to see that systems design logic also applies to human institutions.

I think it's because the equilibriums look much worse. Even if your system is a pile of hacks on top of hacks, it might at least be good enough right now. Not to mention that sometimes you engineer something that works pretty well. Meanwhile the legal system often fails even for the exact situations considered when the rules were made, and there's pretty much no one would feel there isn't some gross injustice happening within it quite frequently (though the injustice may vary).

You could always award reasonable costs to the winner in patent law cases though. You don't have to fix the whole legal system in one go.

Interesting to see you advocate for "ask forgiveness later", one could render that as "if you're rich the legislature is happy as long as you give it a cut". You might as well ditch all corporate application of the law and just increase business taxes, same result but more economical.

I'm pretty sure I said: "I think in areas where causation is difficult to prove (environmental, product safety, employment discrimination), 'ask for permission first' does a better job protecting the public at lower cost."
It's a mistake to blame the rules. Litigation in USA is mostly supply-driven. We have several times the number of attorneys that a society like ours can safely have. The profession of law has created this surplus, and the rest of the nation hasn't reined them in. The only effective solutions would be Shakespearean.
I suppose it probably affects the total amount of litigation. If both parties know they will have to pay their own attorneys fees I'd expect less money to be spent on attorney's fees overall. That might also mean less time spent in court. If it does, perhaps that would be seen as good for the legal system (the courts themselves)?
I haven't checked the stats, but I don't think that there's less litigation in the US compared to other western countries, so if that was the aim it seems to have failed.
I'm curious. What are the pro arguments for the "American rule"?
Suppose you want to sue Megacorp over a few thousand dollars. You're 95% confident of winning, but if you lose, you need to pay Megacorp's legal fees. Megacorp's legal fees are always going to be high, but they can make them even higher than necessary (good luck regulating this), perhaps to the point where if you lose, you're bankrupt.

Result: no one sues Megacorp for small amounts of money. Megacorp can get away with lots of things that they would otherwise be sued for.

(I don't know if this happens in reality, but I do think it's a legit thing to worry about.)

But in practice, in the UK f.e., actual costs aren't awarded but instead a scale of reasonable costs is set.

That way Megacorp can hire 100 barristers if they want but if you lose you pay ordinary levels of costs. It might still bankrupt an individual but Megacorp can't just financially pressure all opponents in giving up in cases when Megacorp will obviously lose no matter who represents them in court.

Also, Small Claims (which I think USA has too), has very limited awards of costs, I'd usually contended just on paper and covers small charges. Allowing you to sue Megacorp by filling out a simple form and not even enlisting a lawyer.

A system with an assumption of awarding reasonable costs seems most preferable.

Just going to brainstorm some ideas, without really being attached to them:

1. The English system doesn't necessarily protect a litigant. A well funded patent troll or a poorly funded but well meaning patent violator is now potentially on the hook for both damages and attorney fees. This is especially problematic when the law favors the accuser (as it seems to do in the American patent system).

2. It's a system that favors the "big guy", the party that has retainers for research, potential suit identification and preparation, not someone who might be accused. This forces smaller parties to invest at least some of their resources in "CYA" rather than doing what they are built to do (make products, for example).

3. It could affect supply of attorneys available to take a case or their fees. Say you feel there's a good chance of beating a wealthy litigant, so you charge more and misjudge? Or you don't feel you could be paid by the opposing party? Grant it, this likely cuts both ways. In the case of patent trolls, it might be beneficial, but perhaps not in others?

While the English rule does increase the risk of a lawsuit for the plaintiff, it ALSO increases the risk for the defendant by the same amount; both sides face the possibility of having to pay the opponents legal fees.

While the defendant in a patent lawsuit might feel they have an airtight case, it is never certain what will happen in a courtroom. You might lose and need to pay the damages PLUS attorney's fees for the plaintiff.

I'm surprised this logic still works. You'd think settling with a troll would put you on the short list for other trolls as an easy mark. The approval system for patents is so broken now, I'd practically expect multiple overlapping grants covering the same "feature" to exist.

You can settle with one troll and still keep your business, but not a non-stop stream of them. At least when the mafia extorted you for "protection" they wouldn't let anyone else muscle in on their turf.

Extortion is a common practice in the DoJ and law enforcement agencies. It is corrupt when the agents participate in a manner where they look to gain for some personal benefit.

The FBI could say, "rat on so and so and we will decrease your sentence by X, otherwise we will push for full sentence" and happens all the time.

But, if FBI said, "give us the password to Bitcoin wallet or you get decades in jail under retarded computer law" and the agent transfers Bitcoin to his offshore account, that is illegal.

I was in complete disbelief when I was in a similar situation. What scumbags.
Power, lawmaking, gatekeeping, and scamming are all more or less correlated.