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June 27, 2005

Supreme Court Rules Against Grokster

Another nail in the well-secured coffin for file-sharing.

I haven't, ummm, "shared" files since they shut down Napster. What a wonderful, felonious time that was.

Also more SC decisions: Ten Commandments on courthouse wall in Kentucky ruled unconstantional, as religiously motivated; but no problem with a monument containing the Ten Commandments by the statehouse in Austin, Texas.

The Supreme Court seems to be slicing the baloney sort of thin.

I blame Sandra Day O'Connor, personally. Not sure if her previous decisions were referenced (though they probably were), but her whole style of decision making-- or rather decision-delaying-- causes a great deal of confusion. And litigation.

Scalia always had a strong preference for bright-line rules. Bright line rules had the wonderful benefit of letting people actually know what the law was, is, and will be. This not only informed people, it reduced litigation, because a Scalia-authored decision would tend to let any future litigants know if they'd win or lose a case. So they wouldn't bother going to court at all. Both sides (usually) could tell who would prevail.

Isn't it nice to know what the law is?

Sandy, on the other hand, could very rarely lower herself to joining a black-and-white decisions, particularly on hot-button issues. And, being a swing vote, you'd need to enlist her to have your side win, and that seems to often come at the expense of making the law into dogfood.

She almost always favors "balancing tests" in which a litany of "factors" to be considered would be enumerated. Sometimes there'd be like ten such factors, and she wouldn't make it clear even as to what priority they'd be considered.

So in any future litigation, you'd have her precious laundry list of "factors" to be "balanced" splitting 6-4 or even 5-5 between parties, a lot of them arguably going either way anyhow, and no one would know who would prevail in a lawsuit, until actually suing.

And even then you wouldn't know, because the lower court could see the factors balancing one way and an appeals court another way and really you wouldn't know the law until Sandy had a chance to check each lawsuit personally on the Supreme Court.

Lawyers must love her. She's a cash cow. With people never knowing what the law actually it, it creates a lot of lawsuits.

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posted by Ace at 12:08 PM

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