Linked by Thom Holwerda on Tue 18th Dec 2012 14:31 UTC
Legal Lots of news about Apple vs. Samsung (and vice versa) in both the US and Europe today. In the US, judge Koh dealth two blows: one to Samsung (no retrial based on juror misconduct), the other to Apple (no permanent sales ban). In Europe, in the meantime, Samsung announced it will cease all lawsuits injunction requests against Apple... But only in Europe.
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RE[3]: Jury qualifications?
by jared_wilkes on Wed 19th Dec 2012 00:27 UTC in reply to "RE[2]: Jury qualifications?"
jared_wilkes
Member since:
2011-04-25

1) Your statement is just plain false. Jury trials are used pretty much only in common-law systems (containing a small portion of the world's population). Now look at e.g. those poor Europeans! (hint: it's satire) So even without a jury, legal systems seem to work just fine.


1a. Maybe it was a mistake to speak about democracy generally, but I'm not suggesting that because many nations have a judicial system without jury by peer, they cease to be a democracy... However, I am saying that democracy is defined by participation. Yes, through representation in most cases but also active participation. Yes, I believe democracy cannot be epitomized by a government which lacks public/peer participation in the judiciary... particularly when there are functioning democracies which do have it as an option. Thus it is an assault on democracy, generally. Secondarily, it is also an assault on this country's democracy specifically.

1b. And, that is additionally, it would cause our, America's, judicial system to not function because juries would never be finalized (again, I was presuming a hybridized jury-expert replacement. If you, like Thom, can't understand why America is founded under a hybridized common law/civil law system and propose that America drops its judicial system for one it rejected, well... that's so foundational and easy for me to understand, I don't even know where to begin explaining why that is and why that will never change... )

2) Democracy is a form of government, which is (hopefully) distinct from the judiciary.


2. Umm, the judiciary is certainly a part of the government. Democracy can certainly run through it. There is nothing logical about saying: the judicial should not be democratic. Just as the police, the sewers, park services, other utilities, (maybe) medical services, and even the legislative, or (maybe) executive branches of a government are parts of the government. And these representational units of government can and, in most cases, should be democratic -- in some form or another or when appropriate as an option.

3) Most importantly, and I can't stress this enough: justice isn't a democratic process! We don't get to decide democratically on what the truth is. Justice, like science, is dedicated to the pursuit of truth and what really transpired, otherwise it would just devolve into a tyranny of the majority - see ancient Athens for an experiment in that.


3. Justice is best served, most undoubtedly, when it is most democratic. It can only be approximated at all, in society, through democratic processes. You cannot separate justice as simply "the judiciary", apart from the other branches of government. The law is never practiced in an philosophically pure state where the legal/moral code is known, unchanging or where the truth can always be ascertained and agreed upon. Maybe you think that of your own country's non-participatory mode of adjudicating the law... Maybe you are American. I don't know. But I personally find civil law systems (most strictly civil law systems still embody democratic processes despite their lack of juries) just as fallible, if not more so, as common law systems.

For some reason, this is obvious to me: that democratic processes throughout all government functions in conjunction with other representational/civil hybridizations of governmental functioning is always a good -- and that justice, as it was prior to the founding of America and as it is in America since, should never be some technocratic bureaucracy and never will be. I think it's highly flawed and often complete shit, but I still love this system more than any other. Absolutely. I can't really follow your whole -- the judiciary is not a part of the government, it shouldn't be democratic -- line... Different strokes for different folks.

And yet systems like this (though not precisely as much as the scientific peer review meritocracy) routinely operate in most of the world, i.e. in countries which do not have jury trials, but trials are instead decided by a qualified judge or panel of judges.


Again, there was a misunderstanding. If the argument being afforded by the opposition is now: America needs to abandon its common law/civil law hybrid system that affords the option to a jury trial by a panel of your peers and fellow citizens in some cases, then I think we're pretty close to all agreeing that Apple has legally and rightfully sued Samsung in the U.S. for patent, trademark, and trade dress violations.

Edited 2012-12-19 00:40 UTC

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