The Punk Test

Predicting the results of important technology, copyright and patent cases is almost impossible. Experts who are intimately familiar with the subject matter and precedents are only slightly better than a coin toss at guessing outcomes. Even cases which seem simple often have completely unexpected conclusions. Why is this? Isn’t the point of law that people understand what it says so that they can avoid doing things it prohibits?

When the judicial system lacks the resources necessary to objectively evaluate a case on the merits, a different decision-making procedure dominates: The Punk Test, takes over.

When a judge can’t conclusively decide which party is in the right, the party that looks like the biggest punk looses, and the opinion is written to justify this decision.

Civil (& some criminal) legislation can be incredibly complex, with multiple actors pursuing convoluted agendas via sophisticated technical means. Even the best lawyers and judges on all sides may have difficulty comprehending the details of the situation before them. Much of what they are examining is innovation by individuals who have spent years becoming experts. It should come as no surprise that this is hard stuff to get your head around.

Judges are expected to interpret statute to justify their decisions, and — worse — they have to assume that the statute was carefully and sensibly written by a sane author. Given the dysfunctional, incomprehensible, I-don’t-think-you-mean-what-you-think-you-mean nature of some statutes, especially modern copyright and information technology laws, this is a daunting task. Try to apply a schizophrenic act to an incomprehensible situation, and it’s no surprise that judges need some help.

In the shadow of this, a secondary form of decision-making takes over: the sort of judicial discretion which hails from early days of common law. If one party looks like they’re acting in bad faith, or trying to game the system, or fudging the facts, or otherwise doesn’t endear themselves to the court, they’re the punk. The punk always looses. It doesn’t matter whether it’s a pair of dueling multinationals, an individual versus a corporation, or a subtle matter of administrative law: if you look like a punk, you lose the case.

Of course, judges can’t admit that this is what they’re doing, so they need to draft an opinion which explains the decision. This results in tortured logic, arcane explanations, and legislative parsing which would make an eighth-grade teacher cringe. Future judges inherit incomprehensible opinions to complement inscrutable statutes, and are placed in an irreconcilable position. So they apply the punk test, write double-think opinions, and perpetuate the cycle.

Next time you’re reading about a litigation matter, think about the punk test. You may be surprised how much it improves your predictions.

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About flamsmark

I do privacy at Mozilla. Years of security have left me incurably paranoid. Tech, policy, security, privacy, & anonymity are good. Open is better. GPG: 80AF07D3
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One Response to The Punk Test

  1. Pingback: Hacktivism & Mistakes | Active Rhetoric

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