Judges in Silicon Valley make deeper, long-lasting tech law
WIRED:THE AMERICAN legal system is a curiously political place. Of course, that’s true in the sense that judges are frequently partisan, elected through the democratic process, or nominated and confirmed by partisan presidents and senators.
It’s also the case that judges, from the lowliest to the Supreme Court, employ surprisingly subtle strategies to ensure thattheir thoughts survive challenges, even when those challenges are meant to be considered by their organisational “betters”.Given the influence that American judicial decisions have on the rest of the world, that grants a lot of power to some apparently modest public servants.
Let me give you two examples, one of might appear initially somewhat tangential to the world of technology, and one which will have a profound effect on the next decade of software development.
This week, it was announced that the Californian Supreme Court had declined to reconsider the overturning of Proposition Nine. Translated from the state’s internal politics, that means that California’s senior judges had bounced a final declaration upon the constitutionality of same-marriage bans to the US Supreme Court.
In doing so, they’ll present the court – now heavily divided between conservative and liberal justices – with a judgment originally constructed by Judge Vaughn Walker, a district judge in the northern district of California.
Walker’s opinion was elegantly constructed to survive such an appeal process; it established the facts of the case, and then created a neatly-parcelled legal argument that barely even conceded that anyone had standing to challenge it.
That doesn’t surprise me, because I saw Walker make a similar initial judgment in a case I was involved in, when a whistleblower at ATT revealed that the US National Security Agency had been conducting mass surveillance on American internet users.
In the end, Walker abruptly decided to throw out the case, but before he did so, you could see him in court carefully pondering not only in whose favour to decide, but how to build up a case that would withstand a challenge.
Perhaps it is because American judges come from adversarial attorneys, but once you spot it, can see the same almost proprietorial concern with their decisions in every part of the American legal system.
And for Silicon Valley, that can be a great benefit. Last week, Judge William Alsup gave his judgment in an apparent battle of the titans – Oracle, the database manufacturer versus Google, the search engine.
Oracle was suing Google because it claimed that Google’s Android mobile phone operating system illegally used elements of Java, the programming language and environment Oracle inherited from its purchase of computer hardware maker, Sun Microsystems.
The judge decided for Google, but his report on the case had an eye for posterity. Carefully walking his jury through the legal details over what may have seemed to them an obscure intellectual property dispute, he left the final detailed decision to himself. In particular, he declared false Oracle’s claim that an application programming interface, or API, could be copyrightable.
