08-07-2012 06:35 PM
08-07-2012 06:45 PM
BearLion wrote:This is a serious strawman, IMO. Sun_Cat merely pointed out how, in a situation of unbalanced monetary resources, it's best to settle . No where did SC imply anything about the government, police, prosecutors/prosecutorial discretion or the like. In this case, arguably the DOJ has more time and resources. SC's argument would have been the same if it was one private company versus another, if one has vastly more money to spend on litigation than the other.
That’s an interesting perspective, Sun_Cat. Do you also believe that local police and prosecutors engage in legal forms of extortion whenever they prosecute criminals or traffic violators? Do you believe that the plaintiff (the state) is dictating settlement terms when a driver receives a speeding ticket? Doesn’t the prosecutor have an advantage over the defendant in such a case, and in many other cases?
What would you propose as a solution to such an unpleasant “set of alternatives from which to choose”? Should we eliminate our police and prosecutors? Perhaps we should repeal all of our civil, criminal and traffic laws. Wouldn’t that lead to anarchy? Would that be a desirable outcome?
It's not a strawman at all. The DOJ, in this case, acts exactly like local prosecutors, enforcing the laws that are on the books. Suppose, for example, the matter was a zoning violation. Would the local governing body's attorneys be incorrect in filing a civil suit to enjoin defendants from continuing the violations? The DOJ did not act with total discretion when it sued Apple and the publishers. Congress passed the Sherman Act, and it was signed into law by President Benjamin Harrison. It is a law on the books of the United States. When should such laws be enforced? Only when it is politically expedient? Why, for example, might it be a bad thing for the Obama Administration to enforce antitrust laws against Apple and some publishers, but okay for the George W. Bush Administration to file an antitrust suit against one beef packer that wished to acquire another beef packer. http://www.dlapiper.com/files/upload/The_Legal_Int
Antitrust suits are not unique to this, or any other, presidential administration. Over the years, there have been numerous antitrust actions brought by presidential administrations, both Democrat and Republican.
Note that, absent the Sherman Act, the DOJ would have lacked grounds for an antitrust lawsuit, and it would not have been filed.
Your observation that "in a situation of unbalanced monetary resources, it's best to settle" does not hold water. Lawsuits are litigated every day in US courtrooms where one side clearly has more monetary resources than the other. That fact does not prevent such suits from being filed, and it doesn't prevent the side with less money from prevailing. If you have had much experience with civil suits, you would probably know that.
08-07-2012 07:15 PM
Do you deny that many people pay their tickets rather than go through the legal process despite honestly believing themselves to be innocent of the charges filed? Of course the state is dictating settlement terms -- especially when the driver in question lives out of state and would incur an undue burden to travel back to the state to defend him/herself 30 or 60 days hence.
I believe SunCat's point was that some of you are pointing to the settlements as if they were admissions of guilt and therefore tacit admissions that the Agency model is illegal when they are nothing of the kind.
I would point out that Penguin setting a price for their ebooks does not preclude you from purchasing alternate ebooks from Random House, Simon & Schuster or Baen so it's hard to argue restraint of trade in the Agency model. Textbooks are about the only item that consumers could argue they HAD to purchase and therefore were unduly burdened by publishers set prices but oops, we get that burden in dead tree text books anyway (or did -- the Internet has brought about a revolution in obtaining used text books much cheaper than in the ancient days when I attended college).
This particular DOJ has a history of questionable legal reasoning so the fact of their filing is also no indicator of the actual legality of the practice.
It is, unfortunately, true that honest citizens have little protection against dishonest police officers. It is widely known that some police officers regularly run "scam" ticket efforts directed (primarily) against out-of-state drivers. What is the solution to this problem? Because some officers are dishonest, does that mean that all officers are dishonest? Would it be better to simply eliminate police and prosecutors? That would be extreme, wouldn't it?
Most Americans understand that the rich and famous get off more lightly in the courts. We look at people like Lindsay Lohan and her recent run-ins with the law, and our suspicions are confirmed. Can you propose a solution to this type of unfairness! Don't we, as Americans, elect our judges, mayors, sheriffs, district attorneys, etc. that are charged with the duty and responsibility of enforcing the law equally and fairly? We can vote them out of office if we don't like they way they are doing their jobs, can't we? We can even recall them sometimes.
"... SunCat's point was that some of you are pointing to the settlements as if they were admissions of guilt ..."
Well, what should we believe? Look, for example, at the "Consent Decrees" that are routinely signed by companies that are accused of illegal activities by various federal and state agencies. The defendants averr that they have done nothing wrong, but they agree to stop doing it anyway. Riight! We all believe that!
The Agency Model that is the subject of the DOJ suit would never have come into existence without the illegal collusion led by Apple, and joined by five of the Big Six publishers. That, alone, made it illegal. Had publishers independently implemented such a pricing model 100 years ago, nobody would think anything of it. But that's not what happened. It was implemented in a fashion that was in clear violation of our country's antitrust laws, and it was so blatant in its form that all of the defendants should have been slapped with significant penalties. Furthermore, the DOJ is letting down American consumers with its kid-glove handling of the publishers.
I wouldn't hold my breath waiting for a re-implementation of the Agency Model pricing scheme anytime in the near future, regardless of what the proposed out-of-court settlement states. Why would these publishers risk additional suits? Remember, this whole scheme was engineered by Steve Jobs for the primary benefit of Apple Computer. Who would benefit if agency pricing were to be re-established?
Perhaps you should read the entire DOJ lawsuit complaint. Have you read it yet?
08-07-2012 07:29 PM
You've changed the context. I was talking about civil suits. You're talking about criminal prosecutions, where the state has to provide free legal services to defendants who can't afford to pay. That's the equalizer. There is no such right for defandants in civil suits. That's why the rich are free to use the system for extortion.
I wish I could propose a good solution. Tort reform of various kinds has generally failed miserably. Prosecutors in civil cases, especially government prosecutors, are rarely if ever accused of violating standards of prosecutorial discretion.
Maybe Shakespeare had it right. As he said in King Henry VI, via his character Dick the Butcher, "The first thing we do, let's kill all the lawyers."
I'm not so sure that we are entitled to free legal services in the event of traffic violations, or in the case of civil violations like zoning ordinances. In fact, I am pretty certain that we must defend such legal actions at our own expense.
You don't really believe that a Public Defender is an "equalizer," do you? Do you believe that O.J. Simpson would have been acquitted of murder charges if he had been represented by a public defender? What about Robert Blake? Lindsay Lohan? Paris Hilton? Charlie Sheen?
Tort Reform is for those who have never been injured by the reckless conduct of another. I haven't heard of many survivors of vehicle accidents caused by DUI drivers who believe in Tort Reform. I wonder why?
"Prosecutors in civil cases, especially government prosecutors, are rarely if ever accused of violating standards of prosecutorial discretion."
Probably because the government is so hesitant to bring such actions.
08-07-2012 07:39 PM
The connection between legal, right and wrong, fairness, justice, whatever you call it is tenuous at best. During my years in social work I saw many divorced people and many decrees. Whichever party which had greater resources frequently ran roughshod over the less moneyed party, perfectly legal. Over the years the laws in my state have evolved from favoring men to now favoring women. This happens because advocacy groups have hammered the public with anecdotal stories encouraging punitive laws. Unfortunately the poorest women don't benefit, because they lack the resources to access the system. Now many working class and middle class men are denied visitation and impoverished by legal over reaction. It is important to remember laws are often written by activists and lobbyist or in response to public fear. In this enviroment a business pays not only legal but PR costs. Yes some consent decrees are by guilty parties, but not all.
There's something here I don't quite understand, Pat. I thought that divorces were handled in Family Court, where judges ruled without the participation of juries. If one party in a divorce is able to hire a better law firm than the other, why doesn't the judge act to ensure fairness in the settlement? Isn't that his or her job?
As an aside, I once knew a man whose wife was represented by Gloria Allred in their divorce. He used to brag about how his run-of-the-mill attorney prevailed over the famous lawyer, and he got everything he wanted out of the divorce.
The better lawyer with the most resources doesn't always win, as we have learned from cases like Erin Brokovich.
08-07-2012 08:06 PM
08-07-2012 08:36 PM
I also want to make it clear why I want retailers to be able to control the selling price of eBooks. It's because it promotes innovation in the industry, not because I think the prices of individual eBooks will fall.
The publishers have shown that they don't care about innovating (bundling discounts, rental subscriptions, used ebook markets). They want to continue operating their businesses out of their New York City offices as they have for the last century and protect their paper book business while the digital age continues to pass them by. This is similar to the attitude taken by the recording industry and when consumers weren't offered digital content, they simply began to acquire the music online on filesharing sites. It took Apple convincing the stubborn record companies that they could make money by selling an album's songs a la carte for 99 cents, and prove to them that there was a market for their content provided that they we willing to break away from their 20th century business model.
See, here is where we will continue to disagree. The kind of "innovation" you want to see isn't the kind I want to see it all. I don't want multimedia books sold by the chapter. I want great stories, the best stories, stories like none I've read before. Stories that make me laugh and cry. Stories that give me faith in humanity, that scare me, that make me believe. That's the kind of innovation that I want to see. We won't get that by destroying the industry and devaluing the work.
08-07-2012 08:54 PM
To reiterate Toastr's point, the legality of the agency model is irrelevant to the DoJ suit. Irrelevant. Should I say it again?
The DoJ has stated that they are suing over the collusion that was all but admitted to when the model went into play, and then again by Jobs to his biographer. If someone would like to link to a document (not wikipedia) that indicates otherwise, please do so now.
08-07-2012 10:38 PM
08-08-2012 01:08 AM
deesy58, you made a bunch assumptions in your response. That the better attorney is the main issue for one. The more moneyed party often keeps returning to court, on support, visitation, education, whatever issue they can raise. The other party either has no representation or can not afford an attorney to bring actions. The original divorce action is often drug out by the more moneyed party. Some states attempt arbitration type processes, but they are the minority. The issue is that except for serious crimes, and even then money makes a difference in access to legal representation. Judges are the guardians of legal proceedures. If the law or legal procees is unfair they are unlikely to invove themselves as long as the process is followed. As I mentioned laws are passed by groups with agendas. Our history is full of examples of bad laws. That a business may not have done anything wrong but sign a decree is certainly a possibility.
I don't believe I made any assumptions, Pat. I did, however, ask a question which I believed was perfectly valid. Having never gone through a divorce, but having relatives who became divorced, I only know what I have heard, second-hand. That's why I asked.
Are you suggesting that either party would want to drag out a divorce settlement? How might that benefit anybody? Do local laws affect divorce settlements, even though they are civil actions? What kind of laws would they be? I ask because I don't know. I do, however, know that some states have implemented "no-fault divorce" systems. I do not ever recall my city or county commissions or councils ever enacting ordinances that affected divorce law, at least not that was reported in the newspaper.
As Americans, we know that the plaintiff must prove his or her case. In the case of criminal actions, the proof must be beyond a reasonable doubt, although civil cases have a lower threshold (preponderance of the evidence, I believe). We also know that we pay our police and prosecutorial agencies to bring civil and criminal actions against those believed to have done wrong.
Do we believe that it is a regular practice in our justice system that the various levels of government regularly bring unfounded criminal charges and civil lawsuits against innocent parties? If we did believe that, then we must have a very low opinion of the governments that we elect in our democratic system of government, and we have only ourselves to blame. Sure. Sometimes an innocent party is convicted, or the plaintiff wrongly prevails in a civil suit. But do we believe that is the rule, rather than the exception?
Keep in mind that, unless a jury is involved, a judge also serves as a "finder of fact."
Although a business that believes it has done nothing wrong might sign a consent decree, keep in mind that the fact of the matter has never been legally established by trial, so it is a matter of who one chooses to believe. I choose not to believe that my government, in the ordinary course of business, behaves like the governments of China, Iran, North Korea, Russia, Cuba and some others. We still have a Constitution, and we have a Supreme Court that regularly interprets it whenever serious disagreements arise.
Groups have agendas, but they cannot pass laws in the United States. It takes a body of elected representatives in our democracy to pass laws, doesn't it?