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| Berkeley Doe Library |
REV. 3/12/2013
Having figured out where this blog is headed, finally, you might ask: do we really need more ankle biting at the law? Do we need yet another attempt by an excited member of a miniature breed, an Affenpinscher perhaps, to nip as the ankles of the law? The answer is clearly: No, we don't!We could, however, use a careful reading, a hermeneutic examination of Judge Chin's Google ruling. We could use a reading by the "common person," an attempt to fathom the puzzle, far from the imperatives of legalese, a reading supplemented by considerable experience working with electronic texts.
We are not, after all, concerned with Judge Chin's famouse opinions of the past;
- item, the defamation of professional wrestling or
- item; comedians who find Congress a fitting platform for their stand-up routines;
- item, the intrigues of Chess Grand Masters or
- item, Bernie the "Pyramid" and
- other things I personally don't care about.
We are talking about a text base of 12 million books, something that has never been seen in the history of man; in the androgynous sense of the word, something I care about very much indeed.
Judge Chin's career can be googled.
This examination of the ruling about 12 million books is informed by the recognition that the law is not absolute; it is not as final as might appear from a specific ruling. The law changes over time, in some instances quite rapidly, in other instances fundamentally and diametrically in the opposite direction, as new cases and new arguments are brought forward by new social interactions, and in this case, new technologies, that demand new wrinkles in the law. In this case Judge Chin seems a bit afraid of the magnitude of his ruling: the delay from '10 to '11 may have been a profound and prolonged bout of nail biting. Or, perhaps 500 pages of drafts ended up victim to the delete key when the judge realized his clerks were no match for Prof. Grimmelmann's students. The ruling itself seems more of a quick final "time out," the score still tied (with .1 seconds on the clock) and an overtime period assured, a short breather before a real ruling can be made.
The fact that the law can change, i.e. the admission that a ruling once made was not really "the law" writ large, but a quite arbitrary assertion of authority, within the great leeway allowed by the ambiguities of language, and limited to a specific case, is one of the great strengths of "The Law." It allows judges, actually, lawyers that have been made judges, to continue to assert authority in an arbitrary manner, with the full confidence if they are way off base, the system will correct itself over time.
Once a ruling is made and an opinion is published, all interested parties descend on the text to find ways to overturn (or buttress) whatever has been ruled. In other words, an explicit assumption of every ruling is that it can be challenged without becoming an enemy of the state that depends on "The Law" for its rules of conduct.
These challenges are formulated in the hyper-polite communication norms of legal procedures and in this case will revolve around resubmitting a renegotiated deal that has been coiffed according to Judge Chins specifications which the next judge may also arbitrarily accept or not. The legal system has infinite overtime periods. Its a bit of a crap shoot, really, but the stakes are worth playing for. Remember the books.
Specific examples can be brought forth to show an evolution of rulings that had to be altered as cultural horizons have expanded. Once the law supported slavery, it supported rapacious monopolies, it legitimized racial segregation and criminalized abortion.
As the cultural horizon moved on, a few courageous appointments and a few fearless judges each decade have rewritten the legal foundations for socially acceptable, or rather unacceptable practices. The rest trudged behind.
Hurray, the law is flexible, hurray, the law can be bent; hurray the law can be turned 180 degrees.
In that sense, our law today is not all that different from when the law was the whim of a despot. Good is bad one day, and bad is good the next. The notion of "living under the rule of law" as currently practiced in many modern democracies insures that reversals in the law undergo a complicated, scripted process - complicated, but doable. The law becomes stable immediately after any cataclysmic changes that might occur. The whim of the despot has been replaced by the will to have it "this way" by individuals or organizations with teams of lawyers to box "their way" through. The team that exhibits the most exertion and has the crucial bit of luck will carry the day - the law will rule for them.
It is not unlike sport. Two teams play, one in red uniforms with white trim and one with white uniforms with red trim. One team plays better, one team has the fortunate call, the fortunate bounce of the ball and the right spin on the ball on the way to the basket: that team wins. The win is temporary. Were one to slay the losing team after each contest, after a few seasons there would remain one team that could be called "basketball." But neither basketball nor the law work that way. Any specific law is the law until it is challenged and overturned, and thank the powers that be for that. In the meantime, the law is interpreted, and that can lead to just about anything.
So what is the role of a member of a miniature breed in this clash of titans. It is the role of the average college undergraduate who (he or she) plays a little intramural sports, stands in line to get tickets to the big game, goes ecstatic at a win and morose at a loss and spends many semi-productive hours honing analytic skills in pre- and post-game analysis.
Not all such analysis is inconsequential. Quite often, important rulings bring non-lawyers to the forefront to put the law in its social-historical context. Legal reasoning, while doubtless influenced by the social-historical, still has to climb the rather steep and narrow ladder of its own procedures. In that world, one ounce of legal reasoning is worth one ton of social-historical descriptive analysis. Perhaps that is a good thing. The literature on this topic is immense; I can only wave in its general direction.
I shall concentrate on Judge Chin's ruling denying the settlement, and concentrate only on the sections of the ruling that are accessible to normal logic. I shall also wave only vaguely at the history of law to support my general points. I am interested in how Judge Chin achieved the temporary balance in this case, for the nonce, and what grievous errors of general perspective (i.e. not narrow technical procedural errors) the ruling contains that must lead to a certain and precipitous reversal. Esperamos.
The arguments will not be legal, so the lawyers can join the twitterers who have departed several paragraphs ago; there is nothing here for you. Go to the Grimmelmann blog.
First the ironies, the prima facie ironies, the ironies that amuse the layperson, the ironies available to all who have the eyes to see them:
My pdf of the Chin ruling has a big rectangular rubber stamp on the first page: USDC SDNY DOCUMENT ELECTRONICALLY FILED. I would have said: "FILED ELECTRONICALLY," but never mind.
Curiously, the DATE FILED: is written in by hand: 3-22-11. The opinion is also "signed" near the end, perhaps by hand, perhaps by an electronic signature. Embedded gifs are widely used in large batch document preparation by people who know what they are doing, unlikely in this case. Thus, the appending of a "signature" on a batch of photocopied documents is no guarantee of anything. Any procedure to secure that signature on an actual sheet of paper is merely silly and antiquated and an absurd waste of money if all that paper with the actual ink signatures is actually stored somewhere.
More to the point would be for the clerk preparing the final copy to check the box: "FINAL SAVE, affix the sitting judge's signature," press [Enter], and generate an e-mail to the judge, automatically, with a cc to a specific log file, that his opinion has been thrown, electronically, to the waiting wolf packs. Then all one need to do is wait for the Google web-crawler to re-index the USDC text base so the wolves that have been googling impatiently for hours can download or print the opinion.
But I am obviously dreaming. The large, rectangular rubber stamp on the title page of my pdf has the look of a real stamp with indications of over-inking and blurred letters. So the question arises, how did the real, convincingly realistic rubber stamp announcing an electronic filing get on the pdf that I downloaded? Inquiring minds want to know.
Obviously, the opinion was printed from the USDC text base, stamped by some employee of the USDC with the big rectangular stamp and then affixed with the date. The printed pages were then physically taken to Judge Chin for an actual signature. All the while, the "real" electronic text of the filing stays pristine and without error save a stray bit flipped by a gamma ray in the USDC text base.
The 48 printed pages, with stamp and signature, were then photo-copied by a clerk and handed out to the waiting throng. The 48 pages were then scanned and OCR'd by any number of concerned citizens or concerned organizations, thank you Scribd in this case. There is nothing actually wrong with this procedure except it makes a mockery of electronic dissemination of texts and allows the creep of errors into the text, unnecessary errors.
In short, our first irony is this: The judge and the clerks write the opinion, press [enter] when it is finished, some more minor clerk prints the pages and routes them to the sitting judge for an actual signature, upon their return, stamps the stamp and runs the pages through the xerox. You say: Who cares? You should care. In the age of high-speed printers it is really an atavistic activity to run paper through the copier to create stacks of printed paper that are then rescanned and re-OCR'd. Printed paper is fine, 48 pages stapled make comfortable reading on the sub-way. Yet, when the sub-way reader gets to the office, it would be nice if the text were on-line without garbled formatting and OCR errors. Here, USDC gets low marks. Perhaps Lexis and Westlaw have elegant solutions, but those of us not working for law firms work with re-scans. The header of the opinions is arranged in a form harking back to the time of the manual typewriter when text boxes were created with dashes, colons and x's. These boxes cause minor havoc with the OCR programs, requiring operator intervention in the best case, minor garbling depending on the placement of the stamp in the worst case. In addition, the footnotes are formatted in such a way that re-OCR'ing causes garbling that cannot be removed without major effort. In any case, in Judge Chin's ruling we have minor garbling. One could argue that for an opinion of the law, such as it is, there can be no garbling at all.
Needless to say, the secondary electronic text of the ruling has minor errors that should be corrected before adding the text to the personal indexed text base. Just be happy that the opinion is not 160 pages long. That would be a clean-up Prima facie, slap happy.
