6 ms·

Surprisingly concise and clear. Metapoint, but wtf... I'm always surprised at the extent to which courts, legislators, regulators and such prefer to decide by

by netcan 5y ago

Surprisingly concise and clear. Metapoint, but wtf... I'm always surprised at the extent to which courts, legislators, regulators and such prefer to decide by analogy. Determining that that X is fundamentally like Y and therefore Y rules apply. This seemingly doesn't require decision making at all. Instead of deciding and making choices, there's a strong preference for determining & adjudicating. I'm not implying this is inappropriate here. Seems pretty straightforward that if labour laws/agreements apply to deliveries, they apply to deliveroo. I wonder why it took this long, in fact. That said... labour "uberization," online privacy issues, media monopolisation issues and any of many digital issues de jure are actually new scenarios. They're not just derivative of pre-digital issues. The effects of one decision or another can be totally unrelated to considerations taken into account whenever the original decision/law was made. The best ruleset, decision or whatnot is not necessarily a derivative of some old one. Who cares if Google is like Bell or standard in some legalistically specific way? Who cares if uber is "really" just a taxis service, limo service or whatnot? Why is that relevant by default? Is it really so impossible to create new labour laws, agreements or whatever we need that actually take into account the existence of app-based casual labour realities of our time?

AndyMcConachie 5y ago
If you're interested in how metaphor and law interact I recommend A Clearing in the Forest, by Steve Winter. https://press.uchicago.edu/ucp/books/book/chicago/C/bo3631960.html https://press.uchicago.edu/ucp/books/book/chicago/C/bo363196...
MomoXenosaga 5y ago
Actually a lot of what the gig economy does isn't new. It's 19th century pre labour union stuff only now with an app. Oude kruiken nieuwe zakken as we say in Dutch. Unfortunately the success of socialism made everyone think the world had moved on from such naked and unapologetic exploitation. intellects vast and cool and unsympathetic, regarded this earth with envious eyes, and slowly and surely drew their plans against us. And early in the twenty first century came the great disillusionment.
- the-dude 5y ago
  Wijn. Oude wijn in nieuwe zakken
  - brnt 5y ago
    Which leads to the question: why store wine in bags?
    - mbg721 5y ago
      https://en.m.wikipedia.org/wiki/Wineskin https://en.m.wikipedia.org/wiki/Wineskin It was apparently easier for preservation at scale than pots or jars were.
    - the-dude 5y ago
      So you can empty them without letting air in. It doesn't break. Actually, wine in bags in boxes is a thing since about 10 years. Works great.
- netcan 5y ago
  There's a yiddish version of that, but I don't remember exactly. Alte smatesh, noy-something. I have to disagree though. Not that I think you're incorrect. It's neither correct not incorrect. It's a reduction, or essentialization perhaps. Even if it is a correct reduction, it isn't a helpful one. Labour for hire sure isn't new, neither is exploitation. However the "gig economy" is a new (or newly common) mode of labour, like hourly vs salaried vs piecemeal... modes that existed in the past. There are two approaches: (1) We can argue about what the rules are, ignoring all evidence that the rules are in fact unclear. This has given the gig economy a good decade to operate without labour laws. (2) We can recognize that laws are a decision. We can make these decisions. make new laws that take into account the technology, norms and industries of our time.
  - lukeschlather 5y ago
    What is the distinction between the "gig economy" and piecemeal hourly work? I mean, it seems to me the only real difference is that they're billed to the minute which doesn't seem like a difference of kind to me. But then taxis that bill to the minute are not new either, the only difference is how jobs are assigned, the work and compensation is identical .
cloudfifty 5y ago
> Is it really so impossible to create new labour laws, agreements or whatever we need that actually take into account the existence of app-based casual labour realities of our time? What's the point of having labour laws if all that's needed to just discard them to reduce labour costs is a very thin veneer of an app? What's so fundamentally different about an app?
- netcan 5y ago
  Because uber, deliveroo and such aren't a veneer. They're an actual mode of labour. You can find analogies in the past. Some might even be close. But, the scale, implications and context is not the same. Labour law related to the kinds of labour that existed. Salaried, hourly, piecemeal, day labour, etc. Any one of those can be considered a "thin veneer" to any other, if you want to play thick. Yet, they did see fit to create laws that take their existence into account. App-work exists. I agree that it doesn't come with enough labour protections. Create some. Meanwhile, there are some notable social advantages to the existence of app-work just as there were to day-labour, piecemeal and other modes of the past. Low friction work can never be low friction enough. The ability to just sign up and work is valuable to some people some of the time. I agree that it shouldn't be a workaround to paying pensions, for example. OTOH... it exists. What are the rules?
  - cloudfifty 5y ago
    > They're an actual mode of labour. You can find analogies in the past. Well, indeed, day labouring and precarious work nothing new under the sun. And the past experience with those is why societies have laws that limits them to various extent. I mean, employers could've just called people on their phones and said it was necessary due to the spread of phones to abandon the now obsolete labour laws. But back then people (and a stronger labour movement) would've just laughed it off and businesses knew that they couldn't pull that trick off. But atm the times are more ripe for this. > But, the scale, implications and context is not the same. What implication and context? That suspiciously vague. Why is scaled-up day labouring suddenly not the same? If any thing it's even more obvious - and important - that it breaks the rules. > if you want to play thick A bit cocky for someone that seem to ignore history. You've said nothing to answer the question what's fundamentally different to justify the regression. The dread of day labouring what one of the very reasons for the existence of these laws in the first place! Now you come along with an app and say that day labouring is henceforth necessary? That makes no sense whatsoever. > Create some. They are already there? One of their very purposes is to protect against exactly this. > App-work exists > it exists What kind of an argument is that even? Still doesn't mean it's legal, just that corps feel the times are ripe enough to try to challenge them by just refusing to comply and spend vast resource on lobbying and taking it to court. > I agree that it shouldn't be a workaround to paying pensions To avoid paying proper benefits/pensions is the very reason of their existence.
KarlKemp 5y ago
Every real-world situation is slightly different than the law. Applying the ideas codified in law to the chaos that is the real world is, essentially, half of what makes up jurisprudence. The other half is then reasoning within the framework of the law. The idea that a specific situation could be captured completely and entirely without ambiguities is the fundamental error in these misguided efforts to create contracts-on-code on the blockchain, and why they can't break out of their tiny box of things that have no meaning in the real world (i. e. NFTs)
FooBarWidget 5y ago
Regarding analogy: one way to look at things is that courts embrace whataboutism. In Internet discussions, people tend to invoke whataboutism to dismiss comparisons with other situations, but the legal world actively compares with other situations in order to derive a judgement.
- WJW 5y ago
  I think it is important to note in this regard that in internet discussion, the parties involved are often debating not only facts but also morality. This is fine, because people on the internet are their own beings and not institutions of democratic government with a formal separation of power. A judge is explicitly not tasked with what the law "should" be, as that is the role of the lawmaking parts of government. The place of a judge is to measure the facts against the law as fairly as possible. One of the founding principles of legal thinking is that equal acts should be judged equally, and one of the ways to maintain equal laws for equal citizens is through jurisdiction. If you did some action XYZ and it is not immediately clear whether you violated the law or not, "but other citizen ABC did the same thing back in 1976 and then the judge ruled that it did not violate the law" should be valid reasoning for the defending lawyer.
- lukeschlather 5y ago
  In a legal context I think whataboutism would be bringing up an example of someone who committed a similar crime but was not charged as evidence that someone should be acquitted. There's nothing wrong with analogy, it's when you bring up someone who might be guilty of malfeasance to excuse another instance of seeming malfeasance that it's whataboutism. It's not whataboutism when you bring up someone who did the same thing and was demonstrated not to have done anything wrong, which is what courts do.
  - FooBarWidget 5y ago
    Correct. But that's not how whataboutism is often actually used in practice in Internet discussions. Many people often invoke whataboutism to reject any kind of comparison. Especially in political discussions, whataboutism is often invoked to excuse double standards.
jhgb 5y ago
> Determining that that X is fundamentally like Y and therefore Y rules apply. This seemingly doesn't require decision making at all. Wouldn't such determination require decision making in itself?
- netcan 5y ago
  I suppose you could argue either way and its opposite in the abstract. IRL however, I think that official/administrative/political decisions are usually presented as non decisions. Maybe a decisions is cloaked "decisive evidence" that leaves no choice, prior decisions/rulemaking is determined to be applicable, or somesuch. Naked "I have made decision X" is generally avoided.
  - Scarblac 5y ago
    I mean, this is a judgment, from a judge. Isn't he making a decision by definition? In this case (I assume) Deliveroo argues that it is not a delivery company and so isn't part of the collective labour agreement, and complainants claimed that it was and that it is. The judge decides that Deliveroo quacks and walks sufficiently like a duck to be considered one. I don't see why "this seemingly doesn't require decision making at all". It was the entire thing the parties disagreed about.
CPLX 5y ago
Decision by analogy is kind of the fundamental point of the legal system. Typically the arguments are just different arguments about which analogy is the closest to the facts at hand, which is usually referred to as "the theory of the case".
- avs733 5y ago
  not just law, analogies and analogical reasoning are pretty fundamental to human thought. [0] https://www.frontiersin.org/articles/10.3389/fnhum.2014.00867/full https://www.frontiersin.org/articles/10.3389/fnhum.2014.0086... [1] https://pubmed.ncbi.nlm.nih.gov/18528776/ https://pubmed.ncbi.nlm.nih.gov/18528776/
AndrewDucker 5y ago
When the analogy method produces a result that's not acceptable to politicians then they'll bring in new laws. But bringing in new laws when the existing ones are having the desired effect would be a waste if time.
contravariant 5y ago
You're asking a court to do something different than apply existing laws to a possibly new situation. That seems like a weird ask.
- CoastalCoder 5y ago
  IANAL but isn't this the crux of the debate regarding strict construction? I agree the apply-by-analogy approach makes sense of laws cannot be revised. But my understanding is that most legislatures are permitted to revise or repeal laws to adapt to new circumstances.
  - will4274 5y ago
    I'm not aware of any law that cannot be revised. Can you name such a country / law?
    - wongarsu 5y ago
      Some constitutions contain parts that can't be changed. The most famous example is probably Germany's basic law (technically not a constitution) where article 79(3) prevents changes to articles 1 or 20 of the basic law [1]. Wikipedia lists some other examples [2]. I'm not aware of anyone setting labor law in stone though, that would seem foolish. 1: https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0415 https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.h... 2: https://en.wikipedia.org/wiki/Entrenched_clause https://en.wikipedia.org/wiki/Entrenched_clause
    - Nitrolo 5y ago
      Probably not the kind of law you were thinking of, but articles 1 (protecting human dignity) and 20 (enshrining the principles of democracy and rule of law) of the German constitution can not be changed or repealed.
  - dagw 5y ago
    Revising and repealing laws is a slow process that take up a lot of legislative resources. Allowing the courts to work in parallel in this way speeds up everything. If the legislature is unhappy with the decisions the court comes to, then they can go in and make changes. If they agree then they don't have to do anything and can focus on other things.
blendergeek 5y ago
In a lot of places we have two separate groups for interpreting law and making law. The courts, by their very nature, are asked only to interpret law.
lokar 5y ago
In the US we tend to do this via the regulatory state. Congress delegates to an executive branch agency some broad rules to be applied and updated over time to deal with new situations. Republicans hate it.
- gruez 5y ago
  > Republicans hate it. As opposed to democrats? Feels like whoever's not in power hates it, eg. 2016 and trump

by netcan 5y ago

AndyMcConachie 5y ago

If you're interested in how metaphor and law interact I recommend A Clearing in the Forest, by Steve Winter. https://press.uchicago.edu/ucp/books/book/chicago/C/bo3631960.html https://press.uchicago.edu/ucp/books/book/chicago/C/bo363196...

MomoXenosaga 5y ago

Actually a lot of what the gig economy does isn't new. It's 19th century pre labour union stuff only now with an app. Oude kruiken nieuwe zakken as we say in Dutch. Unfortunately the success of socialism made everyone think the world had moved on from such naked and unapologetic exploitation. intellects vast and cool and unsympathetic, regarded this earth with envious eyes, and slowly and surely drew their plans against us. And early in the twenty first century came the great disillusionment.

the-dude 5y ago
Wijn. Oude wijn in nieuwe zakken
- brnt 5y ago
  Which leads to the question: why store wine in bags?
  - mbg721 5y ago
    https://en.m.wikipedia.org/wiki/Wineskin https://en.m.wikipedia.org/wiki/Wineskin It was apparently easier for preservation at scale than pots or jars were.
  - the-dude 5y ago
    So you can empty them without letting air in. It doesn't break. Actually, wine in bags in boxes is a thing since about 10 years. Works great.
netcan 5y ago
There's a yiddish version of that, but I don't remember exactly. Alte smatesh, noy-something. I have to disagree though. Not that I think you're incorrect. It's neither correct not incorrect. It's a reduction, or essentialization perhaps. Even if it is a correct reduction, it isn't a helpful one. Labour for hire sure isn't new, neither is exploitation. However the "gig economy" is a new (or newly common) mode of labour, like hourly vs salaried vs piecemeal... modes that existed in the past. There are two approaches: (1) We can argue about what the rules are, ignoring all evidence that the rules are in fact unclear. This has given the gig economy a good decade to operate without labour laws. (2) We can recognize that laws are a decision. We can make these decisions. make new laws that take into account the technology, norms and industries of our time.
- lukeschlather 5y ago
  What is the distinction between the "gig economy" and piecemeal hourly work? I mean, it seems to me the only real difference is that they're billed to the minute which doesn't seem like a difference of kind to me. But then taxis that bill to the minute are not new either, the only difference is how jobs are assigned, the work and compensation is identical .

cloudfifty 5y ago

> Is it really so impossible to create new labour laws, agreements or whatever we need that actually take into account the existence of app-based casual labour realities of our time? What's the point of having labour laws if all that's needed to just discard them to reduce labour costs is a very thin veneer of an app? What's so fundamentally different about an app?

netcan 5y ago
Because uber, deliveroo and such aren't a veneer. They're an actual mode of labour. You can find analogies in the past. Some might even be close. But, the scale, implications and context is not the same. Labour law related to the kinds of labour that existed. Salaried, hourly, piecemeal, day labour, etc. Any one of those can be considered a "thin veneer" to any other, if you want to play thick. Yet, they did see fit to create laws that take their existence into account. App-work exists. I agree that it doesn't come with enough labour protections. Create some. Meanwhile, there are some notable social advantages to the existence of app-work just as there were to day-labour, piecemeal and other modes of the past. Low friction work can never be low friction enough. The ability to just sign up and work is valuable to some people some of the time. I agree that it shouldn't be a workaround to paying pensions, for example. OTOH... it exists. What are the rules?
- cloudfifty 5y ago
  > They're an actual mode of labour. You can find analogies in the past. Well, indeed, day labouring and precarious work nothing new under the sun. And the past experience with those is why societies have laws that limits them to various extent. I mean, employers could've just called people on their phones and said it was necessary due to the spread of phones to abandon the now obsolete labour laws. But back then people (and a stronger labour movement) would've just laughed it off and businesses knew that they couldn't pull that trick off. But atm the times are more ripe for this. > But, the scale, implications and context is not the same. What implication and context? That suspiciously vague. Why is scaled-up day labouring suddenly not the same? If any thing it's even more obvious - and important - that it breaks the rules. > if you want to play thick A bit cocky for someone that seem to ignore history. You've said nothing to answer the question what's fundamentally different to justify the regression. The dread of day labouring what one of the very reasons for the existence of these laws in the first place! Now you come along with an app and say that day labouring is henceforth necessary? That makes no sense whatsoever. > Create some. They are already there? One of their very purposes is to protect against exactly this. > App-work exists > it exists What kind of an argument is that even? Still doesn't mean it's legal, just that corps feel the times are ripe enough to try to challenge them by just refusing to comply and spend vast resource on lobbying and taking it to court. > I agree that it shouldn't be a workaround to paying pensions To avoid paying proper benefits/pensions is the very reason of their existence.

KarlKemp 5y ago

Every real-world situation is slightly different than the law. Applying the ideas codified in law to the chaos that is the real world is, essentially, half of what makes up jurisprudence. The other half is then reasoning within the framework of the law. The idea that a specific situation could be captured completely and entirely without ambiguities is the fundamental error in these misguided efforts to create contracts-on-code on the blockchain, and why they can't break out of their tiny box of things that have no meaning in the real world (i. e. NFTs)

FooBarWidget 5y ago

Regarding analogy: one way to look at things is that courts embrace whataboutism. In Internet discussions, people tend to invoke whataboutism to dismiss comparisons with other situations, but the legal world actively compares with other situations in order to derive a judgement.

WJW 5y ago
I think it is important to note in this regard that in internet discussion, the parties involved are often debating not only facts but also morality. This is fine, because people on the internet are their own beings and not institutions of democratic government with a formal separation of power. A judge is explicitly not tasked with what the law "should" be, as that is the role of the lawmaking parts of government. The place of a judge is to measure the facts against the law as fairly as possible. One of the founding principles of legal thinking is that equal acts should be judged equally, and one of the ways to maintain equal laws for equal citizens is through jurisdiction. If you did some action XYZ and it is not immediately clear whether you violated the law or not, "but other citizen ABC did the same thing back in 1976 and then the judge ruled that it did not violate the law" should be valid reasoning for the defending lawyer.
lukeschlather 5y ago
In a legal context I think whataboutism would be bringing up an example of someone who committed a similar crime but was not charged as evidence that someone should be acquitted. There's nothing wrong with analogy, it's when you bring up someone who might be guilty of malfeasance to excuse another instance of seeming malfeasance that it's whataboutism. It's not whataboutism when you bring up someone who did the same thing and was demonstrated not to have done anything wrong, which is what courts do.
- FooBarWidget 5y ago
  Correct. But that's not how whataboutism is often actually used in practice in Internet discussions. Many people often invoke whataboutism to reject any kind of comparison. Especially in political discussions, whataboutism is often invoked to excuse double standards.

jhgb 5y ago

> Determining that that X is fundamentally like Y and therefore Y rules apply. This seemingly doesn't require decision making at all. Wouldn't such determination require decision making in itself?

netcan 5y ago
I suppose you could argue either way and its opposite in the abstract. IRL however, I think that official/administrative/political decisions are usually presented as non decisions. Maybe a decisions is cloaked "decisive evidence" that leaves no choice, prior decisions/rulemaking is determined to be applicable, or somesuch. Naked "I have made decision X" is generally avoided.
- Scarblac 5y ago
  I mean, this is a judgment, from a judge. Isn't he making a decision by definition? In this case (I assume) Deliveroo argues that it is not a delivery company and so isn't part of the collective labour agreement, and complainants claimed that it was and that it is. The judge decides that Deliveroo quacks and walks sufficiently like a duck to be considered one. I don't see why "this seemingly doesn't require decision making at all". It was the entire thing the parties disagreed about.

CPLX 5y ago

Decision by analogy is kind of the fundamental point of the legal system. Typically the arguments are just different arguments about which analogy is the closest to the facts at hand, which is usually referred to as "the theory of the case".

avs733 5y ago
not just law, analogies and analogical reasoning are pretty fundamental to human thought. [0] https://www.frontiersin.org/articles/10.3389/fnhum.2014.00867/full https://www.frontiersin.org/articles/10.3389/fnhum.2014.0086... [1] https://pubmed.ncbi.nlm.nih.gov/18528776/ https://pubmed.ncbi.nlm.nih.gov/18528776/

AndrewDucker 5y ago

When the analogy method produces a result that's not acceptable to politicians then they'll bring in new laws. But bringing in new laws when the existing ones are having the desired effect would be a waste if time.

contravariant 5y ago

You're asking a court to do something different than apply existing laws to a possibly new situation. That seems like a weird ask.

CoastalCoder 5y ago
IANAL but isn't this the crux of the debate regarding strict construction? I agree the apply-by-analogy approach makes sense of laws cannot be revised. But my understanding is that most legislatures are permitted to revise or repeal laws to adapt to new circumstances.
- will4274 5y ago
  I'm not aware of any law that cannot be revised. Can you name such a country / law?
  - wongarsu 5y ago
    Some constitutions contain parts that can't be changed. The most famous example is probably Germany's basic law (technically not a constitution) where article 79(3) prevents changes to articles 1 or 20 of the basic law [1]. Wikipedia lists some other examples [2]. I'm not aware of anyone setting labor law in stone though, that would seem foolish. 1: https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0415 https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.h... 2: https://en.wikipedia.org/wiki/Entrenched_clause https://en.wikipedia.org/wiki/Entrenched_clause
  - Nitrolo 5y ago
    Probably not the kind of law you were thinking of, but articles 1 (protecting human dignity) and 20 (enshrining the principles of democracy and rule of law) of the German constitution can not be changed or repealed.
- dagw 5y ago
  Revising and repealing laws is a slow process that take up a lot of legislative resources. Allowing the courts to work in parallel in this way speeds up everything. If the legislature is unhappy with the decisions the court comes to, then they can go in and make changes. If they agree then they don't have to do anything and can focus on other things.

blendergeek 5y ago

In a lot of places we have two separate groups for interpreting law and making law. The courts, by their very nature, are asked only to interpret law.

lokar 5y ago

In the US we tend to do this via the regulatory state. Congress delegates to an executive branch agency some broad rules to be applied and updated over time to deal with new situations. Republicans hate it.

gruez 5y ago
> Republicans hate it. As opposed to democrats? Feels like whoever's not in power hates it, eg. 2016 and trump