[libertymcateer]

> You blog sounds like the PR spin that came out of Aereo, a company that spent an inordinate amount of effort to stay within the absolute letter of a law.

Without reading the blog, I just wanted to comment on Aereo: a lot of us think that this was the wrong decision, and not in a facetious or 'cute' way.

To quote Scalia's dissent in the case:

> In a dissent that expressed distaste for Aereo’s business model, Justice Antonin Scalia said that the service had nevertheless identified a loophole in the law. “It is not the role of this court to identify and plug loopholes,” he wrote. “It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes.”

https://www.nytimes.com/2014/06/26/business/media/supreme-co...

[stinkytaco]

This is obviously getting off topic, but in a common law system that interpretation is just wrong. The law is an evolving thing, it is meant to be interpreted, read, and understood, not to be exploited.

[ballenf]

Disagree -- it's not the court's job to even categorize a thing as a loophole or not. It simply applies the law. Some actions will fall inside a prohibition and some outside. Divining the intent of the drafters of the law is something fraught with problems considering the process.

Just one example -- there may have been a group of supporters of the law in question used against Aereo that only supported the law because they realized it had said 'loophole'. The rule would not have become law without the 'loophole'. Now, how should a court interpret those circumstances?

[krona]

> It simply applies the law

This is not the case in common law systems, which the US and UK have. Judges discover the law through principals and precedent. Legislation can override this, however. The US Constitution is a good example.

[raattgift]

There are several different legal systems in the UK; there are both national differences (as between Scots law and the law of England and Wales) and applicability differences (as between private law resolving disputes between private persons, administrative law resolving disputes between a person and a statutory/governmental body and criminal law wherein the state prosecutes alleged wrongdoers). All of these fit broadly under the term "common law", so that term needs to be disambiguated.

EULAs and TOSes are firmly in private law, and we can take England and Wales as the national setting.

Even here, "judges discover the law through principals and precedent" is inaccurate. First and foremost there is overriding statute. Where Parliament has intervened in matters of private law, Parliament wins; the parties may choose to show that Parliament's intervention does not apply for some reason (e.g. it conflicts with a subsequent intervention by Parliament, or it does not apply strictly in the matter before the court). Judges may act sua sponte, but mostly in private law leave such matters up to the parties to draw to the court's attention. Secondly, there's the plain wording of the contract. Finally there's recourse to covering case law established by higher courts and binding on the court of first instance (e.g. the county court or the High Court).

However, Parliament has caused the Civil Rules of Procedure for England and Wales to bind the county courts, and CPR rule 1 is the "overriding objective" which directs judges to be just taking into account the totality of circumstances and the behaviour of the parties, among other things. The UK Human Rights Act 1998 also requires courts to take into account the rights it brought into force, and this applies to all courts. These two features oblige judges to look past statute (or more strictly speaking, to do a reading-down as necessary) and specifics of a contract when assessing liability.

The private law system in England and Wales is (mostly) adversarial with the judges (mostly) paying attention to issues brought up by the parties' advocates. There are specific obligations on the court to act sua sponte as noted, and a court is free to ask questions or consider points not brought up by the parties, and it is also free not to look too deeply into matters of its own volition. This can lead to "judge roulette" to some degree, but the court-appearing legal community in England and Wales is not that large (and it's even smaller in Scotland or Northern Ireland) and good advocates and even good solicitors have some idea of what to expect from a particular judge in terms of case management.

However, I don't think many would agree that judges should "discover the law thorugh principals and precedent". Certainly almost no senior English judges woudl agree with that idea; indeed, the majority is much more likely to say that the parties should draw to their attention every salient aspect of the dispute so as to reduce the court's workload (in principle to do sufficient work that few disputes really need a hearing or a conclusion other than an out-of-court settlement between the parties).

They "discover the law" mostly by having it brought to the attention by the parties. Except in constructive litigation, the adversarial principle supposedly guarantees that one party cannot wholly misrepresent the law to the judge (unfortunately this is often not the case, especially where one party has much deeper pockets than the other, and even less the case when filings are not even dealt with because the cost of litigation exhausts one party even where that party has a good case that the non-exhausted party is misrepresenting the law).

The law stems from several sources. Depending on the area of practice of private law, statute and secondary legislation may have codified many aspects such that no other source of law is required in most cases, or (as in landlord-tenant law) statute law may be highly scattered across many Acts of Parliament, and additionally almost always engages in references to decisions by the Court of Appeals taken to resolve disputes where Parliament has not decided to provide a statutory basis for the resolution. (That's mostly because MPs are terrified of legislating in the area of property law since it is a daunting task to consolidate hundreds of years of various sources of law into one Act; not-so-jokingly the Great Repeal Bill proposed as part of the Brexit process will probably be less involving.)

Scalia's argument is overly idealized and focuses on the legal aspect of the system of justice, to the detriment of the justice side. A system of justice should lead to a finding of liability on wrongdoers, but should hold non-wrongdoers harmless from liability. (Unfortunately there are several aspects of the system of justice in England where that falls down, but at least there aren't many professionals in the justice system who think it should be even less just, finding non-wrongdoers unjustly liable simply because that is what the law says to do.)

[stinkytaco]

You seem to somewhat contradict yourself here. On one had you speak of overriding parliamentary authority, on the other of Parliament steering away from "complex and various sources of law".

But your focus on advocates bring the law to the judges attention seems to support the parent comment, judges "discover" the law. Certainly statute overrides all, but the point of common law is that the statute is always insufficient. It is not enough to deal with the facts of any given case. I don't know much about the UK legal system, but in the US rulings on statute become codified as "precedent". Important and relevant decisions are published, circulated, cataloged, studied and effectively become the law. Any case that is litigated starts with a series of briefs on what the parties feel is relevant case law. It also might include briefs filed by interested parties, studies of the legislative process to determine intent and so on. That is all very much in the realm of "discovery".

[stinkytaco]

Well, we can run down the rabbit hole of "interpretation", I guess, but there is a reason we have an appeals system and ultimately a final arbiter (the Supreme Court). The reason the justice system is separate from the legislative branch is because laws cannot cover every eventuality, nor would we want them to. A judge can interpret specific facts outside of the political machinations of the legislative branch. Indeed, it could be argued that this is good because it prevents the legislative branch from making laws to deal with specific situations (as a lawyer I once new said "Good cases make bad law"). Given the power of lobbyists and issues with earmarking in the legislative branch, I'd say this is a net good. In the case of Aereo, there was enough disagreement and enough room for that discussion that it ultimately had to be decided by the final court.

[frandroid]

> Divining the intent of the drafters of the law is something fraught with problems considering the process.

And yet judges talk about the "spirit of law", as distinct from the "letter of the law", all the time.

[dragonwriter]

> And yet judges talk about the "spirit of law", as distinct from the "letter of the law", all the time.

No, they don't; I've read lots of legal decisions, and that phrase or anything like it is rarely invoked. Pundits, not judges, are prone to talk about the spirit of the law as opposed to the letter; judges are more prone to talk about legislative intent (not "spirit of the law"), not distinct from the letter of the law, but as part of the analysis of which of several facially plausible meanings the letter of the law should be given in the context of the specific fact pattern presented in the case they are dealing with.

[John23832]

To some extent I agree with you, but at the same time it is not the purpose of the court to create law. It is their job to interpret. Lawyers read and understand. Evolution of the law (which involves creating new portions of the law to cover previously created portions which are considered lacking), is the responsibility of the legislative branch (in that case, Congress).

[stinkytaco]

But the common law is evolving. That's why we review previous cases and cite precedent. Because we assume the interpretation of the law will change as soon as it comes into contact with facts. There is a point where Congress needs to get involved, but until they choose to do so, the court system is where the law happens. Sometimes that includes evolution, but I suppose it's up to the appeals system to draw that line.

[John23832]

I can agree with this.

[st3v3r]

Under that reasoning, wiretapping laws and privacy laws should not apply to digital communications, because they were not specifically mentioned.

[fucking_tragedy]

I've noticed a trend where technology-inclined people take a very strict, autistic approach to the law. They tend to view the law as being analogous to source code in that there is no room for interpretation, intent or spirit behind what's codified.

I think this has manifested at its peak with Ethereum.

[John23832]

Laws are funny, they have a certain duality to them. They can be strict, but also fluid.

[John23832]

Not at all. If the existing law is interpreted by the courts to apply to digital communications then it does. Congress a has the ability to remove interpretations by specification.

[st3v3r]

So you disagree with your previous statement? That courts can interpret the law, including the intention of it?

[John23832]

My original comment said that courts could interpret law... I'm not sure what you're getting at. Yes, including intention. US courts do it all the time. It's called the Constitution.

[genericpseudo]

> it is not the purpose of the court to create law

In common law systems it is precisely their job to do so.

[John23832]

In the United States, creation of law is the responsibility of the Legislative branch. There is no avenue for the Judicial branch to create law.

[giobox]

There's one unifying feature of all common law legal systems - judges will publicly almost always proclaim they do not create law, largely because simple prima facie interpretations of most western constitutions say "the legislature makes the laws, the court enforces them", and the existence of judge made law has always had an uneasy relationship with this.

The reality in Common Law legal systems is nothing like this, and judge made law through interpretation and application of precedent is a very real thing, even in the USA. As a particularly blunt example, in some parts of the UK such as Scotland, the traditional common law crimes such as murder/theft etc aren't even defined in primary legislation ("laws"), and exist solely as judge made and applied creations through decades of precedent. Even where there exists primary legislation, the scope of judicial interpretation gives a great deal of freedom to judges to establish precedents that the drafters might not have foreseen or intended.

Heck even the definition of the term "Common Law" is normally interpreted to mean "Case Law" as developed by judges.

https://en.wikipedia.org/wiki/Common_law

[John23832]

I'm not trying to be condescending, but you should probably include a US centric example when asserting how the US works. The Scottish example is irrelevant, as it applies to Scotland, not the US. Also, if you try to relate Scotland and the US under the umbrella of the term "Common Law", but then say that that term has it's own interpretive meaning, you've loosened the association to the point where you can't strictly say that the Scottish and US systems are the same...

Also, as I've seen in other comments, we're going to get on the merry-go-round of defining "create law".

[genericpseudo]

So it is claimed in civics classes, but that's a rather narrow interpretation of "create law".

[John23832]

I'm not sure what other definition there is...

[mi100hael]

Don't you think at a certain point, a loophole in a poorly-written law can be too big for the courts to close? When does a judge go from upholding the spirit to assigning new meaning?

[stinkytaco]

Yes, I do. This is why we have a tiered system. The judge interprets the facts of the case and if they apply the law incorrectly, a higher set of judges can overturn.

EDIT: Or Congress can get involved and change the law. Checks and balances.

[unethical_ban]

Then the letter of the law means nothing.

[stinkytaco]

But in a common law system, the law has many letters. The law consists not just of legislation, but of precedent, briefs, circumstances, intentions and so on. You cite previous decisions and congressional hearings and the feelings of interested parties because that all weighs into how the law is read.

You may disagree with this, but the fact remains that the law works like this in the US and UK and has since 1066.

[tdhz77]

The law is a living breathing organic document. Anybody who says otherwise is living in 1776 with slaves.

[794CD01]

Bad example. Slavery was made illegal the proper way, by changing the letter of the law. See the 13th amendment.

[macspoofing]

Slavery was outlawed through a constitutional amendment because Lincoln (for good reason) was afraid that his Emancipation Proclamation wouldn't hold up after the war.

[randyrand]

If the law is very clear, then the court should not need to do any interpretation. In those cases it just applies it.

In the Aereo case, the law was clear. The court was supposed to uphold the law, but didn't.

[rayvd]

Um, no. Please no. That's a terrifying thought.

[maverick_iceman]

Justice Clarence Thomas wouldn't agree with you.

[stinkytaco]

Considering his decision in Bush v. Gore compared to his other decisions surrounding voting rights and the EPC, I'd say he is not above reproach in the area of consistency. (this could be said of judges on both sides of that case)

[angry_octet]

A great example of how poor Scalia's judicial reasoning was. It wasn't a 'loophole' and the fact that the justices understood it that way probably shows how out of touch they are. But that Scalia disregarded a key tenet of the need to interpret laws based on the circumstances at hand is ghastly.

FWIW I agree that the court got it wrong, but Scalia's reasoning in supporting Aereo's position is flawed.

[macspoofing]

The sad thing with Aereo is that even if they won the supreme Court decision, Congress would have plugged that loophole immediately. They were never going to win.

Scalia went too far with his dissent. Language is imprecise, and in common law it is always coupled with precedent and intent.