The law is squishy [LWN.net]

The law is squishy

Posted Jan 15, 2012 0:03 UTC (Sun) by khim (subscriber, #9252)
In reply to: The law is squishy by giraffedata
Parent article: The Nook Tablet and the GPL

When society decides what costs should fall on a corporation, it does it in different rooms from when it decides what enforcement procedures should be available make such costs land there.

If society decides that company should be liable then it should write penalties (enforced by court) in law. If law forbids something yet does not say what penalty is there for violation then for all intents and purposes such law is pure PR - companies will ignore them and will be right. Top managers understand that principle very, very, VERY well. Joe Sixpack Average may not understand that, but then LWN readers are not Joe Averages, I've kind of expected better from them.

My point, in addition to the fact that they're separate things, was that I find the liability discussion more interesting.

I find them boring. Imaginary liabilities belong to PR realm and there are a lot of other, more interesting things to discuss. They don't materially affect companies and as such are ignored 99% of time. 1% which is not ignored happens when they can be used to improve public image of the company - but it's hard to predict when particular company will need such boost thus it's hard to predict when imaginary liabilities will come in play.

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The law is squishy

Posted Jan 15, 2012 1:04 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

If society decides that company should be liable then it should write penalties (enforced by court) in law.

I think you're mixing multiple legal concepts. Liabilities and penalties don't usually go together. A penalty, based on the latin word for "pain", is a punishment - something designed to make someone hurt - and is imposed as an example to stop people from doing things that are wrong. Liability is just owning someone something. There's nothing wrong with owning someone something; when a court finds liability, it doesn't assess penalties; it just orders that the person owing pay the person owed.

The enforcement procedures I was talking about, in connection with legal liabilities, is making courts available so if someone, due to difference of opinion or simple selfishness declines to pay what he owes, the creditor can force the transfer of wealth. I pointed out that the laws that set up the court system are generally orthogonal to the laws that define who owes whom.

I think we agree more then differ...

Posted Jan 15, 2012 12:10 UTC (Sun) by khim (subscriber, #9252) [Link]

I think you're mixing multiple legal concepts.

Yes. Quite consciously, in fact.

There's nothing wrong with owning someone something; when a court finds liability, it doesn't assess penalties; it just orders that the person owing pay the person owed.

Right. But even in this case lawers fees will not be returned - and this will be your punishment in such a case. If probability of lawsuit is high enough then it works very well - for example if you borrowed money from bank and then decided that there are no need to return the loan then court case is essentially inevitable. Even so these liabilities are usually bolstered by fines and penalties - otherwise it may become easier to postpone payments till the actual squabble in court.

I pointed out that the laws that set up the court system are generally orthogonal to the laws that define who owes whom.

The laws which define who own whom either specify penalties (and then we are back to [potential] court case) or they are just PR (which can be used to placate general public but which are pointless otherwise). Your liability will still be determined by court, but only in handful of cases and penalty will be quite small (lawer's money will be your penalty as noted above) thus it's usually prudent to ignore such liabilities completely: not everyone will go to court thus it's obvious way to save money.

penalty vs liability

Posted Jan 15, 2012 19:19 UTC (Sun) by giraffedata (subscriber, #1954) [Link]

We may very well agree more than differ; that may be because you're using the wrong words for things. Two people can't expect reach a meeting of the minds if they aren't using the same language.

But even in this case lawyers fees will not be returned - and this will be your punishment in such a case.

That's not a punishment - not the way the word is commonly understood. It's no more a punishment than your upholstery getting wet when it rains is punishment for being negligent and leaving your windows down. It's just an unfortunate loss. A punishment is something whose purpose is to hurt. The purpose of the lawsuit is to get a debt paid, not to hurt the person who owed the debt.

Legislators (and courts) do not make laws allocating liability in the hopes that they will generate high legal costs and thereby mold people's behavior.

I agree behavior is governed by enforcement realities as much as by the liabilities being enforced, but they still ought to be discussed separately. I mentioned that "you should fix your sidewalk or you could be sued" demonstrates a misbelief that the lawsuit creates the liability. Even in the case of the soulless corporation, that would be a misstatement; it would be like saying to the CEO, "we should not rent this building; we would be sued for $10,000 a month (the rent)." Yeah, maybe the only reason for a corporation to pay its rent is the threat of lawsuit, but we still recognize the difference between the liability and the suit.