4 ms·

Just on that last paragraph, because the frame annoys me - that is bullying. It isn't fair to insinuate that a company did something wrong by attempting to obey

by roenxi 2y ago

Just on that last paragraph, because the frame annoys me - that is bullying. It isn't fair to insinuate that a company did something wrong by attempting to obey the law. MS knows all about antitrust. They've hired a bunch of lawyers and told them to do what needs to be done to be compliant with the regulations. That shouldn't then be implied as evidence that they are guilty of antitrust activities! What are the lawyers supposed to do, structure the company to maximise the likelihood of an antitrust lawsuit being bought? Nobody should want that, regulator, company or customer.

iforgotpassword 2y ago
Because laws are always flawless and never contain any loopholes, and it has never happened ever that lawyers were specifically instructed by a company to find those loopholes and exploit them as hard as possible.
- mike_hearn 2y ago
  The idea of law as having loopholes is relevant for politicians, who are tasked with ensuring that the written law reflects their intent. It's not relevant for courts, regulators, people or companies, who are all tasked with following the law as actually written. For those people there is no "spirit" or "true law". The reason this is important is it's a sword that cuts both ways. It's always tempting to argue that whatever you'd personally like to happen is what politicians really intended, and any gap between reality and their preferred outcome is therefore a "loophole". But once you get into saying people should follow intent, not written law, others can easily argue that politicians never intended the law to be interpreted like that against them, and so therefore they are morally justified in ignoring it. It can be used against you as easily as you can use it against them. A common example of this problem is income vs capital gains taxes. One ideological tribe is very fond of arguing that people who have income mostly from investments rather than wages are exploiting a "loophole" in tax law, but of course the reason there are different rates to begin with is exactly because politicians wanted to encourage investment. There's plenty of cases where this intent is discussed in written literature and there's no other reason to distinguish between income sources then set differing rates. There is no "loophole" and nor is the "spirit" of the law being violated. But you hear such claims all the time. The other reason it's problematic is because you can't really know what the intent of lawmakers was. The law was their best collective effort at writing down what they wanted, as a result of numerous compromises and disagreements between different people. If they didn't write it down properly or the resulting compromise was a mess, that's on them, but a working legal system doesn't allow people to just blow off their written instructions and assume they know what was really meant.
  - eru 2y ago
    > For those people there is no "spirit" or "true law". Actually, there is. Many judges take various interpretations of the 'spirit' into account. See eg https://en.wikipedia.org/wiki/Originalism https://en.wikipedia.org/wiki/Originalism for one example. And if the courts use some 'spirit' guide them, companies and their lawyers better try and predict what that 'spirit' recommends. > If they didn't write it down properly or the resulting compromise was a mess, that's on them, but a working legal system doesn't allow people to just blow off their written instructions and assume they know what was really meant. Well, then by that definition the real life legal system of the US ain't working?
    - mike_hearn 2y ago
      Originalism is the opposite of that, no? Originalists are all about following what was actually written down, using an understanding of English as it was used at the time. It rejects modern re-interpretations of the law and avoids speculating about the 'spirit' of the constitution, even if that would be more convenient. The competing view is that of a 'living' body of law in which the meaning continually changes without the wording itself changing.
      - eru 2y ago
        Well, either way: than the 'living body of law' theory is an example of such a 'spirit'.
        mike_hearn 2y ago
        It is and you'll notice a lot of people really, really hate it. Trump just broke all fundraising records by miles, because a lot of people who previously didn't support him feel that New York has ignored the written letter of the law in favor of a tribalistic "spirit". There are similar society-rending controversies happening in Europe due to the activist lawmaking of the ECHR. These two perspectives aren't both equally valid: the courts are not allowed under any system of civics to simply do whatever the judge feels like. They are only given leeway to interpret the law when they have no other choice because the statutes are unclear. It's a last resort, and often the result will be people "getting away with it" because there's no law against what they did.
elefanten 2y ago
You ignore “the spirit of the law” with fancy acrobatics around “the letter of the law”… at your own peril. I can’t comment on the claims here, but if MSFT is skirting the intent brazenly enough, the predictable regulatory reaction is no bullying. Everyone involved is well aware of that dynamic. No need to pity MSFT.
- pointlessone 2y ago
  Is spirit of the law ever a concern in the USA? I’m asking because it is in the EU and every US company seem to struggle with the concept if I am to judge by how they engage GDPR, DMA and similar regulations in the EU.
  - nabla9 2y ago
    Spirit of the law is more important in the US. In common law systems (US, UK), there is greater emphasis on the spirit or intent behind the law. Judges have more flexibility to interpret laws and use general principles. Civil law systems place more importance on the letter of the law. The spirit behind the law is secondary. The written legal codes are more important. EU law is mixture of both, but most continental European countries have civil law system (Ireland does not, Nordic countries have mix of civil and common law)
    - vlovich123 2y ago
      Since the 1980s letter of the law has seen a remarkable upswing in power. I wouldn’t say spirit of the law applies anymore to SCOTUS rulings & I suspect federal appointments followed similar biases so it’s up & down the federal court. Not sure about state judges. Do you agree?
      - deleted 2y ago
        [deleted]
  - vlovich123 2y ago
    The US Constitution has largely been interpreted in a “spirit of the law” manner since the founding. Originalism has taken significant durable gains in terms of SCOTUS appointments since the 1980s; prior to that originalists had a good chance of changing their POV once appointed. I suspect similar viewpoints are reflected in the judge appointments as well. Letter of the law benefits the powerful because they can always stay ahead of legislative attempts to fix the letter of the law (or lobby to change the letter). Spirit of the law is much harder to corrupt. Spirit of the law isn’t perfect itself obviously because it is legitimate to point out that it becomes hard to know what the law actually is, especially since governments have gotten into legislating a lot of regulatory nuance and it’s hard to distinguish malicious compliance from good faith effort. It’s also corruptible from overzealous prosecution looking to make a name for itself by taking on unpopular entities that aren’t actually doing anything wrong.
vlovich123 2y ago
This is a confusing argument to me. Are you saying that structuring and smurfing should then be legal? All structuring and smurfing is is an attempt to make sure that financial transactions stay below the statutory reporting threshold. Also, I think you’re conflating my statement which was meant to be prescriptive with a descriptive statement. I’m saying if structuring and smurfing are illegal in a financial context, MSFT doing so to skirt antitrust laws should be similarly illegal - if the laws don’t prohibit it, the laws should be updated. But I’m not a lawyer so it’s possible laws already prohibit it or MSFT violated some laws. Commenting in either direction on an information free article isn’t wise. As for the spirit of the law vs letter of the law, that’s an ongoing debate as old as history. It’s personally weird to me to encounter letter of the law people given that the spirit of the law has a much richer history behind it to my view and seems more defensible. Some amount of rule lawyering is required, but violating the spirit of the law is a more robust legal principle that can withhold participants trying to find creative workarounds around the spirit of the law.
- roenxi 2y ago
  Ah I see, I was in two minds about including the quote but decided against it. I was talking about "Microsoft structured its minority stake in OpenAI in part to avoid antitrust scrutiny, The Times has reported. Microsoft also reached a deal in March to hire most of the staff of Inflection AI, another A.I. start-up, and license its technology. Because the deal was not a standard acquisition, it may be harder for regulators to scrutinize.", not what you wrote. Obviously they structure the deal to involve scrutiny; they aren't going to structure it to invite scrutiny; the deal is designed to avoid anything that would allow a random regulator to get involved. The Times is insinuating without cause. I don't think you're in a position to bully Microsoft. I doubt they care about your opinion.
  - kortilla 2y ago
    If you need to intentionally structure a deal to avoid scrutiny and have it described that way, it implies what you really wanted was much worse. “We packed the goods in nondescript boxes to avoid scrutiny by the border guards…” Scrutiny isn’t something you need to avoid as a big company if you’re not fucking around. The lawyers are there to handle the scrutiny, not to hide stuff from it.

by roenxi 2y ago

iforgotpassword 2y ago

Because laws are always flawless and never contain any loopholes, and it has never happened ever that lawyers were specifically instructed by a company to find those loopholes and exploit them as hard as possible.

mike_hearn 2y ago
The idea of law as having loopholes is relevant for politicians, who are tasked with ensuring that the written law reflects their intent. It's not relevant for courts, regulators, people or companies, who are all tasked with following the law as actually written. For those people there is no "spirit" or "true law". The reason this is important is it's a sword that cuts both ways. It's always tempting to argue that whatever you'd personally like to happen is what politicians really intended, and any gap between reality and their preferred outcome is therefore a "loophole". But once you get into saying people should follow intent, not written law, others can easily argue that politicians never intended the law to be interpreted like that against them, and so therefore they are morally justified in ignoring it. It can be used against you as easily as you can use it against them. A common example of this problem is income vs capital gains taxes. One ideological tribe is very fond of arguing that people who have income mostly from investments rather than wages are exploiting a "loophole" in tax law, but of course the reason there are different rates to begin with is exactly because politicians wanted to encourage investment. There's plenty of cases where this intent is discussed in written literature and there's no other reason to distinguish between income sources then set differing rates. There is no "loophole" and nor is the "spirit" of the law being violated. But you hear such claims all the time. The other reason it's problematic is because you can't really know what the intent of lawmakers was. The law was their best collective effort at writing down what they wanted, as a result of numerous compromises and disagreements between different people. If they didn't write it down properly or the resulting compromise was a mess, that's on them, but a working legal system doesn't allow people to just blow off their written instructions and assume they know what was really meant.
- eru 2y ago
  > For those people there is no "spirit" or "true law". Actually, there is. Many judges take various interpretations of the 'spirit' into account. See eg https://en.wikipedia.org/wiki/Originalism https://en.wikipedia.org/wiki/Originalism for one example. And if the courts use some 'spirit' guide them, companies and their lawyers better try and predict what that 'spirit' recommends. > If they didn't write it down properly or the resulting compromise was a mess, that's on them, but a working legal system doesn't allow people to just blow off their written instructions and assume they know what was really meant. Well, then by that definition the real life legal system of the US ain't working?
  - mike_hearn 2y ago
    Originalism is the opposite of that, no? Originalists are all about following what was actually written down, using an understanding of English as it was used at the time. It rejects modern re-interpretations of the law and avoids speculating about the 'spirit' of the constitution, even if that would be more convenient. The competing view is that of a 'living' body of law in which the meaning continually changes without the wording itself changing.
    - eru 2y ago
      Well, either way: than the 'living body of law' theory is an example of such a 'spirit'.
      - mike_hearn 2y ago
        It is and you'll notice a lot of people really, really hate it. Trump just broke all fundraising records by miles, because a lot of people who previously didn't support him feel that New York has ignored the written letter of the law in favor of a tribalistic "spirit". There are similar society-rending controversies happening in Europe due to the activist lawmaking of the ECHR. These two perspectives aren't both equally valid: the courts are not allowed under any system of civics to simply do whatever the judge feels like. They are only given leeway to interpret the law when they have no other choice because the statutes are unclear. It's a last resort, and often the result will be people "getting away with it" because there's no law against what they did.

elefanten 2y ago

You ignore “the spirit of the law” with fancy acrobatics around “the letter of the law”… at your own peril. I can’t comment on the claims here, but if MSFT is skirting the intent brazenly enough, the predictable regulatory reaction is no bullying. Everyone involved is well aware of that dynamic. No need to pity MSFT.

pointlessone 2y ago
Is spirit of the law ever a concern in the USA? I’m asking because it is in the EU and every US company seem to struggle with the concept if I am to judge by how they engage GDPR, DMA and similar regulations in the EU.
- nabla9 2y ago
  Spirit of the law is more important in the US. In common law systems (US, UK), there is greater emphasis on the spirit or intent behind the law. Judges have more flexibility to interpret laws and use general principles. Civil law systems place more importance on the letter of the law. The spirit behind the law is secondary. The written legal codes are more important. EU law is mixture of both, but most continental European countries have civil law system (Ireland does not, Nordic countries have mix of civil and common law)
  - vlovich123 2y ago
    Since the 1980s letter of the law has seen a remarkable upswing in power. I wouldn’t say spirit of the law applies anymore to SCOTUS rulings & I suspect federal appointments followed similar biases so it’s up & down the federal court. Not sure about state judges. Do you agree?
    - deleted 2y ago
      [deleted]
- vlovich123 2y ago
  The US Constitution has largely been interpreted in a “spirit of the law” manner since the founding. Originalism has taken significant durable gains in terms of SCOTUS appointments since the 1980s; prior to that originalists had a good chance of changing their POV once appointed. I suspect similar viewpoints are reflected in the judge appointments as well. Letter of the law benefits the powerful because they can always stay ahead of legislative attempts to fix the letter of the law (or lobby to change the letter). Spirit of the law is much harder to corrupt. Spirit of the law isn’t perfect itself obviously because it is legitimate to point out that it becomes hard to know what the law actually is, especially since governments have gotten into legislating a lot of regulatory nuance and it’s hard to distinguish malicious compliance from good faith effort. It’s also corruptible from overzealous prosecution looking to make a name for itself by taking on unpopular entities that aren’t actually doing anything wrong.

vlovich123 2y ago

This is a confusing argument to me. Are you saying that structuring and smurfing should then be legal? All structuring and smurfing is is an attempt to make sure that financial transactions stay below the statutory reporting threshold. Also, I think you’re conflating my statement which was meant to be prescriptive with a descriptive statement. I’m saying if structuring and smurfing are illegal in a financial context, MSFT doing so to skirt antitrust laws should be similarly illegal - if the laws don’t prohibit it, the laws should be updated. But I’m not a lawyer so it’s possible laws already prohibit it or MSFT violated some laws. Commenting in either direction on an information free article isn’t wise. As for the spirit of the law vs letter of the law, that’s an ongoing debate as old as history. It’s personally weird to me to encounter letter of the law people given that the spirit of the law has a much richer history behind it to my view and seems more defensible. Some amount of rule lawyering is required, but violating the spirit of the law is a more robust legal principle that can withhold participants trying to find creative workarounds around the spirit of the law.

roenxi 2y ago
Ah I see, I was in two minds about including the quote but decided against it. I was talking about "Microsoft structured its minority stake in OpenAI in part to avoid antitrust scrutiny, The Times has reported. Microsoft also reached a deal in March to hire most of the staff of Inflection AI, another A.I. start-up, and license its technology. Because the deal was not a standard acquisition, it may be harder for regulators to scrutinize.", not what you wrote. Obviously they structure the deal to involve scrutiny; they aren't going to structure it to invite scrutiny; the deal is designed to avoid anything that would allow a random regulator to get involved. The Times is insinuating without cause. I don't think you're in a position to bully Microsoft. I doubt they care about your opinion.
- kortilla 2y ago
  If you need to intentionally structure a deal to avoid scrutiny and have it described that way, it implies what you really wanted was much worse. “We packed the goods in nondescript boxes to avoid scrutiny by the border guards…” Scrutiny isn’t something you need to avoid as a big company if you’re not fucking around. The lawyers are there to handle the scrutiny, not to hide stuff from it.