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[4]: Jury qualifications?
by saso on Wed 19th Dec 2012 08:41 UTC in reply to "RE[3]: Jury qualifications?"
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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...

Jury by peer sounds mighty lofty, except that in this case (and I would argue probably in most cases) it wasn't. The peer of Samsung and Apple isn't some random dude from Arkansas, but instead the likes of LG, Google, Microsoft, etc.

However, I am saying that democracy is defined by participation. Yes, through representation in most cases but also active participation.

You participate by electing your representatives. You're just playing with words here.

Yes, I believe democracy cannot be epitomized by a government which lacks public/peer participation in the judiciary...

And yet much of the world manages to function perfectly happily without them. So again, it's sweet that you believe it, it's just that it is factually not true.

particularly when there are functioning democracies which do have it as an option. Thus it is an assault on democracy, generally.

This comment stinks of American exceptionalism and is quite insulting to the rest of the world. What you're saying, in a sense, is that some other country, by not following the American justice model, is somehow less democratic. Those countries, however, would claim that America's justice system, on the other hand, is geared towards dispensing uncivilized mob justice.

Secondarily, it is also an assault on this country's democracy specifically.

It's merely an assault on your childish notion that democracy is the be-all-end-all in all matters. There are very real examples of democracy getting it badly wrong (e.g. the trial of Socrates).

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,

Can you please point me to some resource that shows that the US rejected a former system of judiciary not based on common law? Because from what I understand, the US inherited the common law system from the former colonies, which in turn had it implemented long before by the British (hint: common law isn't an American invention).

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... )

I can see you believe "democracy is da best!" as almost some sort of holy truth, but this only conspires to warp your reasoning, like in the Samsung-Apple case, where you're essentially trying to defend a bad judgement (it's a fact that the foreman's standard for dismissing prior art is wrong) in order to save your beloved justice system. A rational person would be looking to fix it.

Umm, the judiciary is certainly a part of the government. Democracy can certainly run through it.

While formally correct, it was not what I was getting at.

There is nothing logical about saying: the judicial should not be democratic.

Perhaps I should have phrased it more accurately: the judicial process shouldn't be democratic. There are also problems with the justices themselves being democratically elected, but that is an argument for another day.

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.

Of the above you cite only the executive and legislative are democratically elected. The rest are not. I sure hope members of the medical services in your country aren't elected by popular vote, but are appointed based on their track record.

Justice is best served, most undoubtedly, when it is most democratic.

And this is exactly the fault of your reasoning, right there. The truth is not subject to democracy. To say so is to say that king Canute's idea of commanding the tide not to come in wasn't totally insane.

It can only be approximated at all, in society, through democratic processes.

What you're essentially saying is that truth can be determined by democratic processes, i.e. popular vote. If that is, why don't we determine scientific progress by popular vote? Here's a hint: because it doesn't really work.

You cannot separate justice as simply "the judiciary", apart from the other branches of government.

I should have clarified I was talking about the judicial process, not the office itself.

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.

I never said that every case is always clear-cut. I'm merely calling for a change in the process to more correctly approximate the truth based on what we have learned in the scientific process. Our judicial processes were developed in an age when "witnessing" was equivalent to "evidence", before science defined what cognitive biases are, before we could gather prints, DNA samples, A/V footage etc. Most common law justice systems are still stuck largely in medieval times.

For some reason, this is obvious to me:

Yes, I can see it is obvious to you, but you can't explain it. Democracy isn't the magic bullet you imagine it to be.

and never will be.

Never say never.

I think it's highly flawed and often complete shit, but I still love this system more than any other. Absolutely.

And here you show it clearly. You have an emotional attachment to the way things are, rather than a rational one. It's understandable and natural, but consequently you will not listen to rational argument. It's like trying to reason a believer out of a particular religion - they don't believe it for rational reasons, so rational arguments will not work.

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.

It really boils down to this: it theory jury systems sound lofty and fantastic. But in practice, it's a bunch of uneducated dimwits who are trying to slice through a complex process and frequently get it badly wrong (or use the wrong reasoning to get to conclusions), as in the Samsung-Apple case.

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.

The problem is that it wasn't a panel of their peers. It sounds lofty when you put it in, but it just wasn't and probably isn't in most cases. In most cases, juries consist of uninformed members of the public which do not grasp concepts such as emotional bias, the Dunning-Kruger effect and how easily people are influenced by authority. Even though a total redesign of the common law processes is nearly impossible, some adjustments could be made to make the process less error-prone.

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