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I would recommend two fixes. 1. Random assignment of judges to cases. 2. Any judge accused of failing to recuse from cases with a conflict of interest has to
by btilly 6y ago
I would recommend two fixes.
1. Random assignment of judges to cases.
2. Any judge accused of failing to recuse from cases with a conflict of interest has to face a randomly chosen panel of judges. If the panel agrees that the judge has deliberately taken on cases with a conflict of interest, the judge can be removed from the judiciary.
The first would make shopping for a judge harder. For the second, the way he advertised and then his behavior when he got the cases is hopefully enough to convince a panel of neutral judges that he is biased.
The first would be a relatively easy change to make. The second is complicated by the Constitution, which reserves impeachment of judges to Congress. Something which has only happened 15 times.
However https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5053&context=ylj https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?arti... argues, convincingly to me, that it is within the power of Congress to write a law enabling other judges to remove a judge. (Though not to criminally charge him for his behavior - that still requires Congress.)
- jrumbut 6y agoIf you can't trust judges you're in a lot of trouble. Why trust the randomizer? Or what happens if I accuse the randomizer of being untrustworthy? What happens in smaller districts where there may be a small number of choices? You may want to check out how elections were done in Venice in centuries past. They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect: https://www.venetoinside.com/hidden-treasures/post/the-election-of-the-doge-of-the-republic-of-venice/ https://www.venetoinside.com/hidden-treasures/post/the-elect... The legal system is for the exceptions, the places that automated systems break down, the places that need human judgment. That's the importance of a free press. We can't work without trust, we need it, even though it introduces certain risks.
- searchableguy 6y agoWouldn't a randomizer help with changing incentives? The default assumption should be that people are corrupt given the right incentive which in this case shows. It's not perfect but it's better that someone is not certain that they are able to attract certain cases for future.
- staticautomatic 6y ago“ If you can't trust judges you're in a lot of trouble.” Alexander Hamilton wrote in the federalist papers that we need juries to protect us from corrupt judges.
- dbcurtis 6y agoUnfortunately that does not protect us from the 9th circus. For cases that I follow, just going by whether they were appointed by an R or a D president is 97% accurate at predicting how a judge will vote. If I can predict their vote without reading the briefs or listening to the arguments, I suspect they can (and do) as well.
- gamblor956 6y agoOr, more likely, you need to follow more cases.
- dbcurtis 6y agoI mainly follow civil rights cases.
- jjoonathan 6y ago> Why trust the randomizer? It's easy to do worse than random. Trying to do better than random often ends with doing worse than random, while aiming for randomness usually ends with randomness. > They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect: I see information about the process but none about how and why it failed.
- jackfoxy 6y agoYeah, wasn't Venice a republic for close to 1,000 years? What ultimately did in Venice was Napoleon conquering all of continental Europe.
- michaelmior 6y agoMy interpretation of the comment about trusting the randomizer was how do we trust that selection was actually made randomly?
- rectang 6y ago> If you can't trust judges you're in a lot of trouble. Exactly. We can't trust judges. And we're in a lot of trouble.
- ardy42 6y ago> You may want to check out how elections were done in Venice in centuries past. They thought they could randimize their way to fairness too, it looks pretty silly and ineffective in retrospect: https://www.venetoinside.com/hidden-treasures/post/the-election-of-the-doge-of-the-republic-of-venice/ https://www.venetoinside.com/hidden-treasures/post/the-elect... What specific problem were the Venetians trying to solve with that design, and how did it turn out to be ineffective?
- pklo 6y agoThey were trying to avoid oligarchy, where few powerful families would monopolize the power. It worked remarkaby well, actually: Venetian Republic lasted 1000 years, served as a bulwark against western expansion of the Ottoman empire by running an effective combination of trade engagement and military projection, and was arguably a shining light of western civilization for most of that time. They were done in by the rise of nation-states and loss of income from their Eastern trade, not by failure of their system.
- matheusmoreira 6y ago> If you can't trust judges you're in a lot of trouble. They're just humans. They are not to be trusted by default until they prove otherwise.
- BHSPitMonkey 6y agoIn the real world, people can't be "proven trustworthy". They're given their positions of authority in the absence of proof of untrustworthiness, and they hold those positions until said proof comes along (i.e. disbarment, judicial impeachment) or until they retire.
- kazinator 6y ago> Why trust the randomizer? Moreover, what if the randomizer picks one out of 297 judges, 235 of whom are known to be biased? Then it doesn't help much.
- arcticbull 6y agoRandomization changes the incentive structure. If you can't advertise that you'll adjudicate cases unfairly, the risk-reward ratio changes completely. Why advertise you're corrupt if there's only a 1 in 297 chance the belligerents will land in your jurisdiction?
- kazinator 6y agoThat still seems wrong-headed; you have disincentivized a dishonesty, not dishonesty as such, nor turned the crooked judges honest.
- arcticbull 6y agoJust saying "we should trust judges" doesn't mean that a system of randomized selection for which judge isn't intrinsically valuable or meaningfully increase both confidence in and reliability of the system. We should trust judges. We should also create a system that strives to reduce the chance that individual judges could get to a point where they're less than trustworthy. Judges are people too, and respond to incentives. And yeah some individual judges suck, and are bad at their jobs. Like some doctors, and some lawyers, and some engineers. A system that reduces their impact and influence, like randomization does, minimizes the harm of a bad apple, and also reduces their blast radius. They can't advertise that they'll adjudicate your case. After all, isn't this why we have appeals courts? If you could trust your individual judge implicitly, why allow an appeal? Trust, sure, but verify. > Or what happens if I accuse the randomizer of being untrustworthy? Open source the RNG. Let people see for themselves. Publish the stats that show it's a uniform random distribution.
- leoc 6y agoApparently the Venetian system looks rather good in retrospect, though it did include more rounds and ceremony than was mathematically necessary. https://www.hpl.hp.com/techreports/2007/HPL-2007-28R1.pdf https://www.hpl.hp.com/techreports/2007/HPL-2007-28R1.pdf
- rhino369 6y agoThese judge's don't have a real conflict of interest--as is traditionally understood. They don't make money from these suits--directly or indirectly.
- dogma1138 6y agoIf they are elected I’m sure they’ll get plenty of donations next time they run tho.
- xbar 6y agoAppointed. Irrelevant.
- jjoonathan 6y ago> They don't make money from these suits--directly or indirectly. That's a suspiciously strong claim given the enormous number of options for laundering money/value indirectly. What makes you so sure his contribution to patent trolls' cause is completely unreciprocated?
- Rebelgecko 6y agoWhat contribution?
- jjoonathan 6y agoThe contribution that has patent trolls flocking to East Texas.
- bostik 6y agoThey are not supposed to, but this is the real world. Not the ideal one. I know at least one corruption scandal where judges (2) were getting paid to deliver verdicts in certain way.[0] That was so egregious that it broke the news. 0: https://en.wikipedia.org/wiki/Kids_for_cash_scandal https://en.wikipedia.org/wiki/Kids_for_cash_scandal
- joncp 6y ago> the judge can be removed from the judiciary And disbarred. He shouldn't be able to say "oh well, I tried. I guess I'll go back to lawyering."
- btilly 6y agoThat is up to the bar association, which is a state level issue. Congress can't pass laws on that.
- ashtonkem 6y agoAnd bar associations are famously slow to discipline lawyers that misbehave. In some states you basically need to be convicted of a felony before the bar will step in and do something.
- tqi 6y ago1. Random assignment of judges to cases. I can definitely see the benefits, but don't we also want judges to have domain knowledge?
- Retric 6y agoWe don’t care if juries have domain expertise, why should we care if judges have it? The trade off of high efficiency risks corruption IMO favors lower efficiency.
- arcticbull 6y agoIt's the job of the belligerents to make their case in a way any juror or judge would be able to understand. They and their expert witnesses are to bring their domain knowledge, and to present it in a way a jury of peers would be able to interpret.
- the_crocodile 6y agoArticle agrees with #1. "As they note, it seems like an easy thing to fix if Congress had the will: Two reforms would help solve this problem: first, district judges should—by law—be randomly assigned to cases and, second, venue in patent cases should be tied to geographic divisions within a judicial district, not just the district as a whole."
- ashtonkem 6y ago> As they note, it seems like an easy thing to fix if Congress had the will Ah, there's the problem. If it's not appointing Judges, good luck getting Congress to do it.
- bananaface 6y agoAn alternative and IMO better fix would be to have patent cases decided by juries.