Tuesday, June 02, 2009

Don't blame the judges

Two California court decisions came down last week that have people making all sorts of crazy claims about our legal system.

The first was the decision by the California Supreme Court affirming Proposition-8, the amendment/revision to the California Constitution.

The second was a decision by a California court ruling that the service offered by LifeLock is illegal under California law. An article on that decision is here.

In the Wired article about the LifeLock decision, we have the following passage:

But Chris Hoofnagle, director of information privacy programs for the Berkeley Center for Law and Technology, says the ruling is a disappointment.

“The idea that we could some day see a market where we pay $10 a month to a company to opt us out of junk mail, to monitor our credit, to do all sorts of privacy-enhancing steps that we don’t have time to take … for that market to emerge, LifeLock’s business model and similar ones have to be legal,” Hoofnagle says.

I find this comment puzzling. All the judge did was interpret the law, he didn't make it. Nowhere does Mr. Hofnagle say the judges ruling was wrong on the facts, but he criticizes it anyway.

There was also rather a lot of this same type of commentary about the California Supreme Court's decision ruling that Proposition-8 is legal and will stand. Much of the complaining was along the lines of "but how can they take away our rights like that?" It isn't that I'm not fundamentally sympathetic to this position, but like it or not, the California constitution is a complete mess, the direct democracy system we have is a complete mess, and it all needs reworking.

This all points me to a couple of conclusions.

  1. If you're not winning under the current rules of the game, change the rules. This can be through getting a law passed, or even through amending the constitution.
  2. The California direct democracy experiment has gone horrible wrong, and its time to write a new constitution that eliminates this nonsense.
  3. Richard Friedlander had it right in this perspective piece on KQED.

And lastly, all of this complaining about judges reminds me of a famous Richard J. Daley quote, which I'll tweak here for my own purpose:

The Judges aren't here to cause disorder, they're here to preserve disorder.

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