Comment by avs733
7 years ago
I'm surprised to see the broader point not being discussed. In the technological age in which we life, this conceptual understanding of a different decision by a judicial court is differentiating in how the law is managed. Alsup is able to execute his job to a more accurate and seemingly better results because he, rare amongst jurists, has some technical knowledge of the field at the heart of these cases.
Without such knowledge, courts and those in power seem to more commonly turn to analogies provided by each side. What makes an analogy is not its accuracy but how much relatedness the person hearing it feels, especially when we rely on an adversarial courts system wherein each side is expected to 'explain' how technology works.
While the complexity of our laws obviously bears some responsibility here, it would seem that the education and capacity necessary to understanding the technical arguments is critical. We aren't in the 1700's anymore...if the judges do not have the ability to understand when they are being misled about technology what do we do? Are their resources for them to turn to that are unbiased? Do they have a budget and time to do so? Or do they just rely on each sides paid expert witness and we role the dice on which argument of how technology works the judge finds more compelling?
A few points:
1. At least in Australia, where I work, most judges are appointed in their 50s and 60s, meaning those currently on the bench likely went to law school in the 70s at the latest. Computer classes were relatively rare, and most lawyers back then did their degrees in Arts and Law. Science/Law degrees did not become popular (relatively speaking; they're still a distinct minority of lawyers) until the late 90s. That cohort has not yet been appointed to the bench.
2. Judges do have associates or tipstaffs (in the U.S. they're called "clerks"), and there are a decent number who have STEM degrees. They can, to some extent, assist the judges in understanding the issues so as to work out what questions they need to ask to educate themselves and to bring out the issues in the case.
3. Managing STEM issues in cases (and this is not just confined to software but includes science generally, as many cases involve chemistry, biology and physics) is generally done by lawyers who have relevant degrees. Generally speaking, we know enough to stop it going off the rails, and we try to pick experts who know and can explain the concepts to non-technical judges. We try to educate them, and de-jargonify the issues where appropriate. This is not that different from picking lawyers with shipping expertise in shipping cases, insurance expertise in insurance cases, etc.
4. Thankfully, we don't have juries for civil trials other than sometimes in defamation cases. Frankly, the use of juries in civil litigation in American courts is an anachronism that is pretty astonishing to non-US lawyers. (It's up there with electing some judges.) I think this is the real problem at the level of fact-finding. Testimony has to be aimed not at intelligent, well-educated judges who have an open mind and are trying to learn issues about coding (or the function of mRNA, or stereochemistry, or hydrostatic forces, or any other specialist area like forensic accounting, or how banks do their daily reconciliations with each other etc), but at the people who were unable to dodge jury duty. The idea that a case of any significance is left to a jury is unfathomable to me.