starts mainly in the brain
but, unfortunately, does not stay there... or allow one to evade My Fair Lady playing over and over in one's head during a migraine attack thanks to late-night TV...
- The theme of today's Supreme Court decisions was "we're not here for the substance; we're here for the process." Each case turned on a court below not following what the respective majorities determined was the correct way to get to a decision, ranging from failure to allow sufficient scope of federal preemption (Bartlett, that federal drug-warning regulations preempt state defective-design laws) to failure to impose the correct burden of proof on the correct party in discrimination-like matters (Fisher, the affirmative-action-in-admissions case; Nassar, the "supervisor" retaliation case; and Vance, the "nonsupervisor" retaliation case), and that Congress can modify special conditions of a conviction to require compliance with unspecified (indeed, not-yet-existing) state law (Kebedoux).
This leads to one overriding observation. There's a single, common underlying flaw in the context of each of these cases: Bad statute-writing enabled — indeed, in one instance (Bartlett) almost compelled — the Court to reach the results that it did. Justice Ginsburg's separate bench statement, applied to both Vance and Nassar and calling on Congress to overrule the Court's statutory interpretation (which Congress can do), just reinforces that the problem was a lack of clarity in the statute — not unconstitutional overreaching. Admittedly, no statute can be perfect; it's not just that litigants get "creative," it's that the real world is far more creative and far more full of exceptional circumstances than can be fully encompassed in any statute. But there's one area of statute-writing in which there's no excuse whatsoever for anything less than unmistakeability: The burdens of proof for both causes of action and defenses. Perhaps my time as a military officer always concerned with rules of engagement makes me overemphasize the importance of their statutory equivalent; I've nonetheless found that problems of this nature are a reliable pointer to bad writing in the statutes. The Court has been issuing constant decisions on burdens of proof — particularly, but not only, in discrimination-related causes of action — since the early 1960s. One would think that half a century would be long enough to convince Congress that it needs to be explicit on what the burdens of proof are in discrimination-related statutes, whether new law or revisions of old law. One would also be wrong.
- The e-book antitrust conspiracy trial is now in Judge Cote's hands for decision. A piece on Apple's closing statement at Ars Technica silently points out that Apple's defense focused on remedy, not on liability, issues. The key point is unsurprisingly simple: That the government's case depended upon inferring a spoke-and-hub conspiracy in the absence of specific, fully-confronted, unambiguous Statements of Evil Intent™. The real silence in Apple's presentation (which I found remarkably unconvincing... but then, I actually know how book distribution works, and doesn't work) was on the burden of proof. Throughout that slide deck (and, based upon qualified observers actually in the courtroom, throughout the oral portion of the presentation), the rhetoric is that of the criminal defendant seeking reasonable doubt as a path to acquittal. Startlingly similar to the problems at the Supreme Court this morning, however, that's not the relevant standard of proof. Instead, the subtext is something like this imaginary, shockingly honest (and therefore indisputably imaginary!) summary:
May it please the court.
The key to this case is that Apple should not be treated as a criminal — and neither should the publishers — in responding to monopolization by others, such as Amazon. Even if this Court determines that the defendants' actions constituted a conspiracy, it was a conspiracy against a wrong that the government allowed to exist through its own failure to enforce other parts of antitrust law, and it was a conspiracy that was narrowly tailored to specifically confront that wrong. Even if the Sherman and Clayton Acts somehow prohibit the defendants' attempts to keep Amazon from destroying their businesses, it was self-defense. Any remedy fashioned should this honorable court find liability should be narrowly tailored to any unlawful aspects of the Agency Model, and should not extend beyond that.
This court does not have the power to hold the government accountable for its failures to enforce antitrust law against Amazon. This court does, however, have the power to express disappointment in the government's failures, and to take those into account when fashioning a remedy for unclear violations in an unclear and rapidly evolving context intended to confront the results of those failures.
Given the monopolization practices in other contexts of Apple (e.g., misuse of dubious patents to prevent competition in the cell-phone market) and the publishers (e.g., unlawful acquisitions and misuse of other aspects of the distribution system to prevent new competitors from entering the marketplace), this hypothetical statement sounds a bit much of the man who murdered his parents begging the court's mercy because he's an orphan. That said, the actual evidence — evaluated under the actual burden of proof, "more probable than not" — is more than adequate to establish liability.