[MaxfordAndSons]

This struck me as the most outrageous aspect of the story.

I think having a 3rd party host laws behind a paywall is a terrible idea in terms of the public good, but I can at least see that the cost based argument behind it is coherent.

But the judge finding Malmud to be engaged in "commercial" activity and "profiting" without profiting is some Orwellian bs and seems to me to be belie a personal stake in this decision. After all, judges in Georgia have no incentive to see defense lawyers get better/freer access to the annotated case law (and the state prosecutors surely get it for free anyway). I hope Malmud succeeds in appealing.

[Erik816]

Can you spell out why judges don't have an incentive for defense lawyers to have better access to the law? When I was clerking for a judge, my main complaint was that the legal briefs were not well written or researched and I basically had to do it myself. Informed lawyers make it easier on the judge and his staff.

[MaxfordAndSons]

I'm making the realpolitik assumption that many if not most judges, especially elected ones at the county level, are not purely impartial and will tend to side with the prosecution all other things being equal.

It's not that I think all judges and prosecutors are evil authoritarians, it's just that there are a bunch of externalities at play:

- If they are elected, they'll want to be seen as pro law and order

- They probably know and work more closely with a smaller set of prosecutors than defense lawyers, and could develop interpersonal biases favoring them

- Related to above, far more judges are former prosecutors or corporate lawyers than defense or public interest lawyers

- And there's the general pessimism/dislike towards (accused and actual) lawbreakers that many on the inside of the judicial system are prone to develop after decades of dealing mostly with that segment of the population

Not to discount your experience as a clerk, but those were your complaints, not the judges you worked for, no? Do any of my points above accord with your experience, or am I totally off base?

[Erik816]

I think some of those factors are relevant, others less so. For example, in most jurisdictions judges are probably seeing the same defense lawyers just as much as they are seeing the same prosecutors. Also, whether it is beneficial to be "tough on crime" will depend on the jurisdiction. And then of course you have Federal Judges, who are appointed for life and thus not subject to that factor. I clerked for a Federal Judge in San Francisco, and he was very liberal. He thought through each case carefully and definitely wanted to know all of the relevant law, whether that came from the parties or from my own research.

But, even if all of those factors are in play, the most conservative, "tough on crime" judge sure as hell better care more about the rule of law than they do about an outcome in any one particular case. They need both parties to accurately represent what the law is so they can make correct decisions, even when those decisions are sometimes judgement calls that might more often go for the defense or the prosecution depending on the particular judge. Realpolitik should not infringe on respect for the rule of law, and to the extent it has that is a serious problem. I understand being cynical, but if that is how intelligent people view our judicial system working, then we are screwed as a country.